San Francisco employers have long operated under one of the country’s most expansive “ban-the-box” laws. Beginning August 10, 2026, amendments to the City’s Fair Chance Ordinance (FCO) will further expand protections for applicants and employees with criminal histories while increasing potential liability for employer non-compliance.

A Quick Refresher of the FCO

The FCO applies to any employer with five or more employees worldwide if they have personnel working at least eight hours per week in San Francisco (including remote, hybrid, temporary, and contract roles).

Under the baseline ordinance, employers cannot:

  • Inquire about criminal history on job applications or during initial interviews.
  • Run a criminal check or ask criminal history questions until after extending a conditional offer of employment.
  • Consider specific prohibited records at any time (e.g., arrests that did not lead to conviction, juvenile records, infractions, or convictions older than seven years).

What Changes on August 10, 2026?

The Board of Supervisors amended the FCO to protect individuals from out-of-state enforcement of laws targeting conduct that remains legal in California. Employers and consumer reporting agencies are barred from inquiring about, obtaining or considering out-of-state convictions or unresolved arrests for California-lawful conduct related to:

  • Abortion-related healthcare (seeking, receiving, or facilitating services)
  • Spontaneous abortion (conduct related to miscarriages or stillbirths)
  • Gender-affirming care (medical treatment, support, or facility/sports team access aligned with gender identity)
  • Drag performances (public artistic performances involving gender expression)

When an employer considers taking adverse action (such as revoking an offer) based on a permitted record, specific procedural safeguards apply:

  • Evidence Submission: Applicants have 7 days from receiving a pre-adverse action notice to submit evidence of inaccuracies, rehabilitation, or mitigating factors.
  • Mandatory Confirmation: If an applicant submits the information, the employer must confirm receipt in writing within 14 days and reassess the decision in light of the evidence.
  • Mandatory Withdrawal: If the applicant makes a reasonable showing that the proposed action is based solely on a non-directly related conviction or a newly protected category, the employer must withdraw the adverse action.

The San Francisco Office of Labor Standards Enforcement increased both administrative penalties and liquidated damages available in civil litigation for ordinance violations. Technical oversights, such as using outdated pre-adverse action letters or failing to send the 14-day receipt confirmation, now carry heightened financial liability.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.