San Francisco Employers Cannot Take Action Against Applicants/Employees for Marijuana Offenses That Have Since Been “Decriminalized”
Apr. 11 2018

San Francisco Employers Cannot Take Action Against Applicants/Employees for Marijuana Offenses That Have Since Been “Decriminalized”

Topics: New Laws & Legislation, Personnel Policies and Procedures

Last week, the San Francisco Board of Supervisors approved amendments to the City’s Fair Chance Ordinance, an ordinance that originally was enacted in 2014 to place limits on employers’ consideration of criminal history in making employment decisions.  The amendments to the ordinance primarily are aimed at making the local ordinance more consistent with the new statewide ban-the-box law that took effect January 1, 2018.  However, one amendment goes farther than the statewide law and specifically prohibits employers from basing employment decisions on a conviction for a crime that has since been “decriminalized,” with specific reference to certain offenses for non-commercial use and cultivation of marijuana – conduct that has since been legalized in California.  California employers are already prohibited by Labor Code section 432.8 from inquiring about or basing employment decisions on certain non-felony marijuana convictions that are more than two years old.  The amendment to the San Francisco ordinance, however, effectively expands this restriction to include marijuana convictions (including those that are less than two years old) based on conduct that has since been decriminalized with the legalization of marijuana for specified purposes in the state (California Health and Safety Code sections 11362.1 and 11362.2).  Thus, employers with operations in San Francisco will need to more carefully evaluate whether any marijuana-related conviction that appears on a background check or is disclosed by an applicant/employee is a conviction that may be considered in denying employment or taking other adverse action based on that conviction.  The amendments to the San Francisco Ordinance take effect October 1, 2018.  Note that the local prohibition on use or reliance on certain conviction information does NOT mean that employers may not take adverse action against an applicant or employee who fails a drug test, even if the drug that results in the positive test is marijuana.  Because marijuana remains an illegal drug under federal law, employers whose policies clearly indicate that a positive drug test for illegal drugs (including marijuana) will be a bar to employment may continue to apply and enforce those policies in California.  The amendment to the San Francisco Fair Chance Ordinance, however, is the first of what likely will be several legislative efforts aimed at protecting the employment rights of individuals who use marijuana legally within the meaning of state law.

In addition to the amendment discussed above, San Francisco’s Fair Chance Ordinance is also being amended to make it more consistent with the statewide ban-the-box law.  Whereas the Fair Chance Ordinance currently only applies to employers with 20 or more employees, the amended Ordinance (like the statewide law) will apply to employers with 5 or more employees.  Additionally, whereas the local ordinance currently allows criminal conviction inquiries after the first live interview of an applicant, the amended Ordinance (like the statewide law) will only allow such inquiries after a conditional offer of employment.   The San Francisco Ordinance continues to be broader than the statewide law in that it flatly bars consideration of convictions that are more than seven years old and bars consideration of non-felony/non-misdemeanor “infractions,” except where the infractions are reflected on an applicant/employee’s driving record and driving is more than a “de minimis” component of the job at issue.

For more information on the amendments to the San Francisco Ordinance, click here

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Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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