San Francisco expands Fair Chance Ordinance to bar use of certain out-of-state convictions in hiring decisions
If your business operates in San Francisco, a recent expansion of the city’s Fair Chance Ordinance (FCO) could change how you handle criminal background checks for employment decisions.
San Francisco recently enacted Ordinance No. 128-26, amending the FCO to prohibit employers from considering certain out-of-state criminal convictions and arrests in employment decisions. The amendment takes effect on August 10, 2026.
What changed?
The FCO has long restricted how employers with five or more employees use criminal history information when making hiring decisions. The latest amendment adds a new category of protected conduct: Employers may no longer consider out-of-state convictions or arrests for conduct that is lawful in California, specifically related to out-of-state convictions or unresolved arrests for:
- Abortion-related healthcare
- Drag performances
- Gender-affirming care
- Spontaneous abortion (miscarriage)
Steeper penalties for violations
The amendment also increases the financial consequences for employers who violate the FCO. Maximum administrative penalties for employment violations have doubled across the board: from $500 to $1,000 per affected person for a first violation, from $1,000 to $2,000 for a second violation, and from $2,000 to $4,000 for subsequent violations. Liquidated damages available in a civil action have also doubled, from $500 to $1,000 per person per day the violation continued.
What about the individualized assessment?
Under the existing FCO, employers must conduct an individualized assessment before taking adverse action, considering only “Directly-Related Convictions,” the time elapsed since the conviction, and any evidence of rehabilitation or mitigating factors. The amendment provides that an abortion-related healthcare conviction, drag-related conviction, gender-affirming care conviction, or spontaneous abortion-related conviction shall not be a “Directly-Related Conviction.” In other words, these out-of-state convictions are categorically excluded from the individualized assessment and cannot be considered in making an employment decision.
Key takeaways
- Review your background-check processes.
- Update your screening vendors.
- Know the new penalty exposure.
- Remember the broader FCO still applies.
Employers with questions should reach out to employment counsel.
