San Francisco’s FCO regulates how and when employers may ask about and use arrest and conviction records in hiring decisions. 

Criminal background check restrictions, popularly known as “ban the box” laws, are back in the news. The city of San Francisco has expanded its Fair Chance Ordinance (FCO), barring employers from using certain out-of-state convictions in making employment decisions. On July 10, 2026, San Francisco Mayor Daniel Lurie signed Ordinance No. 128-26 (File No. 260540), which amends San Francisco’s FCO, further restricting consideration of criminal history during the hiring process. The amendments took effect August 10, 2026.

Background of San Francisco’s Fair Chance Ordinance

San Francisco’s FCO regulates how and when employers may ask about and use arrest and conviction records in hiring decisions. Enacted in 2014 and amended in 2018, the FCO applies to all employers with five or more employees located or doing business in San Francisco and to positions where an employee works or will work for at least eight hours per week in San Francisco, including temporary, seasonal, part-time, contract, contingent and commission-based work. The FCO also covers work performed through the services of a temporary or other employment agency and any form of vocational or educational training—with or without pay. Under the FCO, employers:

1. May not inquire about a job applicant’s arrest or convictions on a job application;
2. May never consider specified arrests, convictions or infractions (see below);
3. May conduct background checks or inquire about convictions or unresolved arrests, but only after a conditional offer of employment is made;
4. May consider convictions that are directly related to the job, but only after making a conditional offer of employment; and
5. Must follow notice-and-response procedures to give applicants the opportunity to dispute or provide context to their records.

The FCO also contains job solicitation/advertisement, posting and compliance reporting requirements. See our previous Alert. The San Francisco ordinance is separate and apart from the California Fair Chance Act, which governs how and when employers throughout California (not just in San Francisco) may inquire about and consider job applicants’ criminal history. See our previous Alert. Employers in San Francisco must comply with both laws.

Key Amendments

Expands Type of Criminal Convictions That May Not Be Considered

Under the existing FCO, employers may not consider:

• Arrests not leading to convictions (except for unresolved arrests);
• Participation in a diversion or deferral of judgment program;
• Convictions that have been dismissed or expunged;
• Convictions in the juvenile justice system;
• Convictions that are more than 7 years old (unless the position supervises or provides services to minors, seniors or dependent adults);
• Infractions (except driving record infractions when driving is part of the job); or
• Convictions for decriminalized conduct, including the noncommercial use and cultivation of cannabis.

The new ordinance creates four new categories of convictions, specific to out-of-state proceedings, that employers may not use in making employment decisions:

• Abortion-related healthcare convictions: Described as conduct that is lawful under California law with 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;
• Drag-related convictions: Articulated as conduct that is lawful under California law and that is 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;
• Gender-affirming care convictions: Described as conduct that is lawful under California law and that is related to seeking, performing, providing, receiving or facilitating medical care for the purpose of addressing disparities between any person’s gender identity and their physiology or perceived gender identity;
• Spontaneous abortion-related (miscarriage) convictions: Articulated as conduct that is lawful under California law and is related to actions taken by a person regarding their own noninduced pregnancy loss before 20 weeks of pregnancy (miscarriage) or seeking, performing, providing, receiving or facilitating the services of a physician or other medical professional related to such pregnancy loss.

Expands Pre-Adverse Action Requirements

Under the existing FCO, employers intending to take adverse action based on an applicant’s or employee’s conviction history are required to conduct an individualized assessment, provide notice of the intended adverse action and give the applicant or employee an opportunity to respond with evidence of inaccuracy or rehabilitation. If the applicant or employee demonstrates that the proposed adverse action is based solely on a conviction that is not “directly related” to the position, the employer must withdraw the action. A conviction is “directly related” only if the underlying conduct has a direct and specific negative bearing on the individual's ability to perform the job’s duties.

The new ordinance adds an extra requirement to this process. If an applicant or employee responds to a pre-adverse action notice within seven days, the employer must now confirm receipt within 14 days. Previously, employers had to consider such information but were not required to acknowledge receiving it.

Increases Penalties for Violations

Under the FCO, an applicant or employee who believes they have suffered a violation may seek enforcement through an administrative action with the city’s Office of Labor Standards Enforcement (OLSE) or through a civil lawsuit. The new ordinance doubles administrative penalties for violations enforced by the OLSE. The new penalties range from $1,000 per person for the first violation, increasing up to $4,000 per person for subsequent violations. For civil actions, a prevailing plaintiff is entitled to liquidated damages for each affected person, per day the violation continued. The new ordinance increases this amount to $1,000 per person, per day.

What Does This Mean for Employers

To ensure compliance with the amended FCO, it is recommended that San Francisco employers:

Review and Update Job Applications and Background Check Policies

Employers should review job applications and criminal background check policies and procedures to ensure they are updated and do not consider prohibited arrests or convictions, including the new prohibited out-of-state convictions. Consider updating internal checklists or decision-making frameworks used in the individualized assessment process to expressly exclude these categories.

Train Recruitment and Hiring Personnel

Ensure that personnel involved in the recruitment and hiring process, including those who review criminal background check results, understand what they can and cannot ask, when they can conduct background checks, when and what convictions they may consider and the notice and response procedures required by the ordinance.

Evaluate Background Check Vendors, Temporary and Employment Agency Practices

Employers who use third-party consumer reporting agencies, background check vendors or hire through temporary or other employment agencies are encouraged to review those contracts as well as vendor practices, protocols and forms to ensure compliance with the FCO.

Revise Notices and Templates

Review and update any template notices used in the pre-adverse and adverse action process to reflect the new requirements and ensure that protected conviction categories are not referenced as a basis for adverse decisions.

For More Information

If you have questions about this Alert, please contact Lorraine Ocheltree, Rocio Hernandez, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.