San Francisco Employers Banned From Asking About Pot Convictions

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By Joyce E. Cutler

Employers and contractors in San Francisco will have to wait until after making a job offer to ask workers and applicants about convictions for now-decriminalized behavior such as growing or using marijuana.

The measure builds on the city’s existing “fair chance” law that bars criminal inquiries for convictions for decriminalized behavior. The new ordinance also gives employees and applicants the right to sue over violations.

Supervisors on April 3 unanimously passed the measure, which now heads to Mayor Mark Farrell (D), who has 10 calendar days to sign, veto, or let the ordinance become law without his signature. Farrell supported the 2014 “ ban the box” ordinance as supervisor.

The amendments, which arise from California’s legalization of recreational pot as of Jan. 1, cover convictions for conduct decriminalized since conviction, including non-commercial cannabis use and cultivation. Employers with five or more employees are covered.

Employers, contractors, and subcontractors are barred from conducting or obtaining a background check until after a conditional offer of employment. The provision mirrors the requirement in the Los Angeles fair chance law passed last year.

$500-$2,000 Fine

The proposed law has a $500 penalty per employee or applicant for first offense, $1,000 for a second violation, and $2,000 penalty thereafter. The city, any employee, or applicant can sue to enforce the law in court after waiting 90 days from filing of a complaint with the San Francisco Office of Labor Standards Enforcement. Fines would go to the affected person rather than the city.

The San Francisco Chamber of Commerce unsuccessfully urged supervisors to reduce the penalty amount. The Chamber supported the 2014 legislation implementing the ban on criminal inquiries.

“Our local law’s enforcement provisions work and do not need to be redrafted in a manner that may encourage unnecessary litigation,” Jim Lazarus, Chamber senior vice president, said in a March 19 letter to supervisors.

The amended ordinance is operative Oct. 1.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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