The Basics
State: San Francisco, CA
Type: Fair Chance
Effective: August 10, 2026
Key Takeaways
· Employers may not consider out-of-state criminal convictions for conduct that is lawful in California related to abortion-related healthcare,
· Employers have additional obligations when conducting an assessment of an applicant’s or employee’s criminal conviction history, including acknowledging and considering any additional information provided by the individual during the adverse action process.
· Penalties for violations have doubled from the prior amounts.
What are the limitations in considering criminal records?
In addition to existing city and state requirements, employers may not consider an out-of-state conviction for conduct that is lawful in California related to:
· An Abortion-Related Healthcare Conviction: which has the primary aim of seeking, performing, providing, receiving or facilitating the services by or of a physician or other medical professional to terminate a pregnancy.
· A Drag-Related Conviction: related to a public, artistic performance characterized by exaggerated displays of femininity or masculinity. In some instances, demonstrated by wearing clothing associated with a different gender than the person’s assigned gender at birth.
· A Gender-Affirming Care Conviction: related to seeking, performing, providing, receiving or facilitating medical care, support or advocacy for the purpose of addressing disparities between any person’s gender identity and their physiology or perceived gender identity.
· A Spontaneous Abortion-Related Conviction: related to actions taken by a person regarding their own noninduced pregnancy loss before 20 weeks or pregnancy, also known as a miscarriage, or seeking, performing, providing, receiving or facilitating the services by or of a physician or other medical professional related to such type of pregnancy loss.
If a conviction does not obviously relate to one of these types of offenses, but the individual provides additional information demonstrating that it does relate, then the conviction cannot be considered when making an employment decision.
Can an employer take adverse action based in whole or in part on criminal record information?
Yes, provided they follow existing city and state requirements. Before taking adverse employment action, an employer must conduct an individualized assessment to determine whether the applicant’s or employee’s criminal history is directly related to the position.
Recent amendments to the San Francisco ordinance also require employers to consider the nature and gravity of the offense or conduct, bringing the city's assessment criteria more closely aligned with California state law.
What steps must an employer take if they are considering taking adverse action?
In addition to the adverse action requirements under state law, employers in San Francisco who intend to take adverse action based on an applicant’s or employee’s conviction history must:
- Provide written notice of the prospective adverse action which identifies the specific conviction history information or other factors that form the basis for the decision.
- Provide a copy of the Background Check Report.
- Allow at least seven (7) days for the individual to respond (give “notice”), orally or in writing, with evidence of the inaccuracy of the item(s) of conviction history or any evidence or rehabilitation or other mitigating factors.
If a candidate provides additional information for consideration, the city’s amendments require employers to take the following additional steps:
- Provide a response within fourteen (14) days confirming receipt of the additional information provided by the individual;
- Delay taking adverse action for a “reasonable period” of time (not to exceed 30 days) for the employer to review and consider the information provided; and
- Review and re-evaluate the information provided before making a final decision.
If the individual provides information showing that the criminal history used in the decision is not directly related to the job, the employer should withdraw the adverse action decision.
If, after considering and re-evaluating any additional information provided, the employer determines that adverse action remains appropriate, the city’s recent amendments require the employer to issue a final written notice of the adverse action within thirty (30) days. However, employers should continue to follow California state law when issuing the final notice, as the state's timing requirements are more restrictive.
What other changes impact employers?
Increased Penalties: The amended ordinance doubles the existing administrative penalties for violations. Employers may be subject to penalties of up to $1,000 per affected applicant or employee for a first violation, up to $2000 per affected applicant or employee for a second violation, and up to $4000 per affected applicant or employee for each subsequent violation. In addition, applicants and employees may bring civil actions against employers, and the available liquidated damages have doubled to $1,000 per affected individual.
FCO Poster: The Fair Chance Ordinance Poster is anticipated to be updated. Employers should ensure they are using the most current version.
Recommendations
We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.