San Francisco Amends its Fair Chance Ordinance

On July 10, 2026, the San Francisco Board of Supervisors amended the Fair Chance Ordinance (FCO), placing additional restrictions and requirements on employers who make employment decisions based on criminal history (the “Amendment”).

The Amendment took effect on August 10, 2026. The Amendment prohibits employers from taking adverse action based on out-of-state criminal history related to conduct that is lawful in California, including abortion-related health care, drag performances, gender-affirming care, and spontaneous abortion. The Amendment also requires employers to take additional steps prior to issuing adverse action based on criminal history and increases the administrative penalty for violations and the amount of liquidated damages available in a lawsuit.

FCO Overview

San Francisco’s FCO requires employers with five or more employees located or doing business in San Francisco to follow strict rules regarding the timing and scope of inquiries into an applicant’s or employee’s criminal history. The FCO applies to all positions for which the applicant or employee will work or works at least eight hours per week in San Francisco. Under the FCO, covered employers are prohibited from asking about arrest or conviction records until after a conditional offer of employment. In addition, covered employers may never consider:

• An arrest not leading to a conviction, except for unresolved arrests.
• Participation in a diversion or deferral of judgment program.
• A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative.
• A conviction in the juvenile justice system.
• An offense other than a felony or misdemeanor, such as an infraction.
• A conviction that is more than seven years old (unless the position being considered supervises minors or dependent adults).
• A conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis.

The FCO also imposes affirmative obligations on covered employers related to notice and posting requirements, taking adverse action based on criminal history, and compliance reporting. For example, job advertisements for covered positions must state that qualified applicants with arrest and conviction records will be considered for the position in accordance with the FCO. Additionally, covered employers must display this poster at each worksite. Prior to taking adverse action against an applicant or employee based on criminal history, a covered employer must take certain steps, including, but not limited to, conducting an individualized assessment of the crimination history and providing the applicant or employee with notice and the basis of the prospective adverse action, and an opportunity to respond.

The FCO provides for administrative penalties for violations, an administrative appeal process, and a private right of action once the administrative process has been exhausted.

The Amendment

New Protections

The Amendment prohibits employers from taking an adverse employment action against an applicant or employee, in whole or in part, based on out-of-state convictions for:

• Abortion-Related Healthcare
• Drag Performances– defined by the Amendment as “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.”
• Gender Affirming Care
• Spontaneous Abortion – also known as a miscarriage. The Amendment protects those convicted after seeking, performing, providing, receiving, or facilitating medical services related to a miscarriage or stillbirth.

The FCO’s other definitions, including those for the terms “Conviction,” “Arrest,” and “Unresolved Arrest,” were not changed by the Amendment. The Board of Supervisors did, however, add language to the FCO definition of a “Directly-Related Conviction,” the term used in connection with an individualized assessment that refers to an offense that has a direct and specific negative bearing on an individual’s ability to perform an employment position. Under the FCO, covered employers must determine whether conduct that was the subject of an unresolved arrest or conviction should be considered directly related to the employment position sought, such that it is a Directly-Related Conviction as defined by the FCO. In making this determination, employers must consider whether the employment position offers the opportunity for the same or a similar offense to occur and whether circumstances leading to the conduct in question will recur in the employment position. Covered employers must also consider “the nature and gravity of the offense” in making their determination as to whether the conduct is a Directly-Related Conviction.

Additional Procedural Obligations

The Amendment also adds a new requirement to the FCO’s mandatory procedures related to the evaluation of criminal history. When an employee or applicant exercises the opportunity to submit evidence regarding inaccurate criminal history, rehabilitation, or other mitigating factors, employers must now confirm receipt of such evidence within 14 days of receipt. Notably, the Amendment does not explicitly require that employers provide such confirmation to employees or applicants in writing. However, it would be prudent for employers to do so, especially because language added by the Amendment indicates that the clock on the FCO’s required “reasonable period” for reconsideration of an adverse employment decision starts to run when the employer acknowledges receipt of rebuttal evidence, not when the employer receives the evidence.

Further, when an adverse action is finalized, employers are now required to notify the employee or applicant within 30 days of: (i) issuing the initial notice of a prospective adverse action or, (ii) if rebuttal evidence was submitted, receiving the rebuttal evidence. Employers should take note of these distinctions that affect the timeline for a final determination.

Significantly, the FCO now requires employers to withdraw a prospective adverse action whenever evidence submitted by the employee or applicant provides “reasonable, factual” proof that the proposed adverse action is based solely on a conviction that has no direct and specific negative bearing on that person’s ability to perform the duties or responsibilities of the position (i.e., is not a Directly-Related Conviction).

Enhanced Enforcement Provisions

The Amendment increases the administrative penalties for violations of the FCO. Each employee or applicant whose rights under the FCO were violated counts as a separate violation. The first violation carries a penalty of up to $1,000; the second violation carries a penalty of up to $2,000; and each subsequent violation carries a penalty up to $4,000. In addition, the Amendment increases the liquidated damages available to up to $1,000 per employee, applicant, or other person whose rights were violated, for each day such violation continued or was permitted to continue.

Employer Takeaways

This Amendment adds significant additional fair chance protections for applicants and employees in San Francisco, especially when their criminal history is based on an out-of-state conviction for conduct that is lawful within the State of California. It also adds new compliance obligations with respect to taking adverse action based on any type of criminal history.

San Francisco employers should take care to review their background check policies and procedures to ensure compliance with the FCO and this recent Amendment, especially in light of the increased penalties and liquidated damages associated with violations.

San Francisco is one of many local jurisdictions with its own fair chance law, which should be considered in tandem with the statewide Fair Chance Act. California employers should consider working with counsel to ensure that their background check policies comply with the law(s) applicable to their workforce. 

Elizabeth A. Ledkovsky, Staff Attorney, contributed to this report.

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The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.