Who Decides What's Job-Related? San Francisco's Fair Chance Amendment Changes The Answer

Historically, the Fair Chance Ordinance Regulated the Process

The Fair Chance Ordinance has long required employers to delay consideration of criminal history until after a conditional offer of employment, conduct an individualized assessment, consider evidence of rehabilitation and other mitigating factors, and provide applicants with an opportunity to respond before making a final decision.

Importantly, however, the ordinance generally did not dictate the outcome of that assessment. It regulated how employers reached a decision, not what decision they ultimately reached. After considering the relevant facts, employers retained discretion to determine whether a conviction was "directly related" to the position.

The latest amendments preserve that framework for most criminal history. But they also create an important exception.

When the Law Decides What's Job-Related

The amended ordinance creates four new categories of convictions involving abortion-related healthcare, gender-affirming care, drag performances, and spontaneous abortion. More importantly, it provides that these categories cannot constitute Directly-Related Convictions under the ordinance. As a result, they may not serve as the basis for an adverse employment decision.

At first glance, these changes appear to expand the list of protected criminal history. Their significance, however, extends beyond the addition of four new categories.

Under the traditional Fair Chance framework, an employer conducted an individualized assessment and determined whether a conviction was sufficiently related to the duties of the position to justify adverse action.

For these newly protected categories, that determination is no longer left to the employer. The ordinance has already answered the question.

Historically, the Fair Chance Ordinance regulated the employer's decision-making process. The latest amendments regulate the decision itself.

The direct impact of this change may be limited because the protected categories involve relatively uncommon criminal convictions. But their implications extend beyond the specific conduct they address. The amendments demonstrate that, at least in some circumstances, the City has chosen to define the boundaries of employer discretion rather than simply regulate how that discretion is exercised.

In other words, the ordinance decides what employers may consider job-related instead of leaving that determination entirely to the individualized assessment.

The Revised Individualized Assessment Reinforces That Shift

The amendments also revise the ordinance's pre-adverse action process in several important ways.

First, employers must now acknowledge receipt of an applicant's response within 14 days after the applicant provides information challenging the accuracy of the conviction history or submits evidence of rehabilitation or other mitigating factors. That acknowledgment requirement is new.

Second, employers must continue to delay any adverse action for a reasonable period while reconsidering the proposed decision in light of the information provided by the applicant.

Third, and most significantly, the ordinance now requires employers to withdraw a proposed adverse action if the applicant makes a reasonable factual showing that the decision is based solely on a conviction that is not legally capable of constituting a Directly-Related Conviction.

That requirement goes beyond procedural fairness.

Previously, an employer that received additional information from an applicant was required to reconsider its decision. Under the revised ordinance, however, reconsideration is no longer the end of the analysis. In certain circumstances, the law dictates the outcome. Once an applicant establishes that the proposed adverse action rests solely on one of the newly protected categories of criminal history, the employer's discretion ends.

OLSE's Review Authority Reflects the Same Change

The amendments also modify the Office of Labor Standards Enforcement's (OLSE) review authority in a way that reinforces this shift.

Until now, OLSE generally did not second-guess an employer's determination that a conviction was directly related to the position. The amended ordinance preserves that principle for most convictions but creates an important exception. If an employer bases an adverse employment decision, in whole or in part, on one of the newly protected conviction categories, OLSE may determine that the employer has violated the ordinance.

Again, the significance lies not in expanding OLSE's role generally, but in narrowing the circumstances in which employers may exercise independent judgment.

The ordinance also strengthens enforcement by increasing administrative penalties, expanding potential liability for procedural violations affecting multiple applicants, and increasing liquidated damages available for certain violations. While those changes deserve employers' attention, they are secondary to the more fundamental shift in who decides what's job-related.

What Employers Should Do

Although these amendments apply only within San Francisco, employers with operations in the city should review their Fair Chance hiring procedures before the August 10 effective date. In particular, employers should consider:

• Updating adjudication guidelines to reflect the new categories of convictions that cannot constitute Directly-Related Convictions.
• Training recruiters, hiring managers, and adjudicators on the revised individualized assessment process, including the new acknowledgment requirement and mandatory withdrawal provision.
• Reviewing adverse action workflows to ensure applicants' responses are handled consistently with the revised ordinance.
• Evaluating whether existing escalation procedures adequately address situations involving these newly protected categories of criminal history.

Looking Ahead

The practical impact of San Francisco's amendments may ultimately prove modest because they apply to a relatively narrow set of criminal convictions. Their broader implication is that fair chance hiring laws may be evolving beyond regulating how employers exercise discretion and toward defining the boundaries of that discretion.

For decades, fair chance laws have largely regulated how employers make hiring decisions involving criminal history. San Francisco's latest amendments suggest that, in limited circumstances, legislators may also be willing to decide what employers may consider job-related.

Whether other jurisdictions follow that approach remains to be seen. But one thing is clear: the debate over fair chance hiring is no longer just about process. It is increasingly about who gets to make the underlying judgment.

Who decides what's job-related? In San Francisco, at least for some convictions, the ordinance now supplies the answer.