United States: Philadelphia Expands "Ban The Box" Ordinance To Further Restrict The Consideration Of Criminal Background Records In Hiring Decisions

On December 15, 2015, Philadelphia Mayor Michael Nutter signed amendments to the city’s 2011 Fair Criminal Screening Standards (“Ban the Box”) Ordinance that limits employers’ ability to inquire about the criminal backgrounds of job applicants. These amendments expand the substantive and procedural restrictions on employers’ consideration of criminal conviction records. The amendments take effect on March 14, 2016.

The amendments to the Ban the Box Ordinance (“the Ordinance”) make several key changes that significantly restrict the ability of employers to consider an applicant’s criminal record in the hiring process.

Expanded Scope of Covered Employers. The amendments expand the scope of the Ordinance to apply to all private employers with one or more employees, whereas the original Ordinance applied only to employers with 10 or more employees. The Ordinance does not apply in the limited circumstances where criminal background inquiries are authorized or mandated by another law or regulation. For example, criminal background checks are required for certain healthcare workers.

Deferral of Timing of Criminal Background Checks. Employers may conduct criminal background checks only after they have made a conditional offer of employment to an applicant. The original Ordinance permitted employers to conduct these checks after the first interview. The amended Ordinance prohibits employers from including in their job applications any question about criminal convictions, or even about applicants’ willingness to submit to a background check, “whether or not certain applicants are told they need not answer the question.”

However, an employer may give notice to applicants of its intent to conduct a criminal background check only after a conditional offer is made, as long as the notice is “concise, accurate, made in good faith” and states that “any consideration of the background check will be tailored to the requirements of the job.” As with the original Ordinance, if an applicant voluntarily discloses his or her criminal conviction record before a conditional offer is made, the employer is then permitted to discuss that record with the applicant.

Restricted Look-Back Period for Criminal Convictions. The amended Ordinance restricts employers from considering convictions more than seven years prior to the date of the inquiry, excluding any periods of incarceration. The original Ordinance did not impose any time limitation on conviction records that may be considered.

New Guidelines for Evaluating a Criminal Conviction; No Automatic Exclusions. Before an employer may disqualify an applicant based on his or her criminal conviction record, the employer has to make an individualized assessment of the relationship between the conviction and the particular position. The amended Ordinance prohibits employers from maintaining any policy of automatically excluding applicants with criminal conviction records from a job or class of jobs.

Employers should consider the following factors in this individualized assessment:

  1. The nature of the offense;
  2. The time that has passed since the offense;
  3. The applicant’s employment history before and after the offense and any period of incarceration;
  4. The particular duties of the job;
  5. Any character or employment references provided by the applicant; and
  6. Any evidence of the applicant’s rehabilitation since the conviction.

An employer may not withdraw a conditional offer of employment based on a criminal conviction record unless the conviction “bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to the operation of the business or to co-workers or customers, and that exclusion of the applicant is compelled by business necessity.”

New Notification Requirement to Applicant. If an employer rejects an applicant in whole or in part based on the criminal conviction record, the employer is required to notify the applicant in writing and provide the applicant with a copy of the criminal history report. The employer then must allow the applicant 10 business days to provide evidence of an inaccuracy on the report or to provide an explanation. This requirement is similar to the requirements for conducting criminal background and credit checks under the federal Fair Credit Reporting Act.

New Posting Requirement. The expanded Ordinance requires employers to post a notice of the Ordinance in a form to be issued by the Philadelphia Commission on Human Relations (“the Commission”).

New Complaint Procedure and Private Right of Action. The amended Ordinance provides applicants with the right to file a complaint with the Commission within 300 calendar days of the alleged violation of the Ordinance. The Commission may then investigate the complaint and impose remedies on the employer including, but not limited to, a cease and desist order, injunctive or other equitable relief, payment of compensatory damages, payment of punitive damages up to $2,000 per violation, and reasonable attorneys’ fees. The amended Ordinance also gives applicants a private right of action to file a complaint in court after they have exhausted the administrative process with the Commission. Courts may grant relief to aggrieved applicants including, but not limited to, compensatory damages, punitive damages and reasonable attorneys’ fees.

What This Means for Employers

Philadelphia is among a growing number of major cities across the country, including San Francisco, Chicago and, most recently, New York City and Portland, Oregon, with “Ban the Box” ordinances. A number of states, including Massachusetts, Illinois, New Jersey and, most recently, Oregon, also have passed some form of “Ban the Box” law.

Further, the U.S. Equal Employment Opportunity Commission (“EEOC”) and other government agencies are supportive of efforts to require case-by-case evaluation of an applicant’s criminal conviction history as a means of combatting unlawful discrimination. For example, in its 2012 Enforcement Guidance on the consideration of criminal records in employment decisions, the EEOC stated that the disqualification of applicants based on criminal records may have a disparate impact on certain racial and ethnic groups.

The EEOC Enforcement Guidance recommends that employers conduct individualized assessments using, as a starting point, the Green factors, which are: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job. As noted above, the amended Philadelphia Ordinance requires employers to consider in their individualized assessments multiple factors, which go beyond the Green factors.

The amended Philadelphia Ordinance appears to be more restrictive than the EEOC’s Enforcement Guidance in at least one key respect. The EEOC Enforcement Guidance permits employers to maintain, in limited circumstances, a policy or practice of “targeted exclusions” of individuals from particular positions for specified criminal conduct within a defined time period, as guided by the Green factors, without the need for an individualized inquiry. By contrast, the Philadelphia Ordinance prohibits employers from maintaining a policy of automatically excluding any applicant with a criminal conviction from a particular job or class of jobs and requires individualized assessments before rejecting applicants based on criminal convictions, unless an automatic exclusion is required by another law.

In light of Philadelphia’s expanded Ordinance, Philadelphia employers should review their hiring procedures to ensure compliance with the Ordinance and other laws governing the consideration of background checks including, but not limited to, the Fair Credit Reporting Act.

For example, employers in Philadelphia should consider removing from their applications for employment any reference to criminal convictions or willingness to conduct background checks, unless the reference meets the specific requirements of the amended Ordinance. If another law or regulation requires employers to ask certain applicants about criminal convictions, a separate application with an appropriate question consistent with those other legal requirements should be developed only for such applicants.

Additionally, Philadelphia employers who inquire about criminal convictions may want to develop or revise their criminal conviction inquiry forms to provide to applicants only after a conditional offer has been made. To the extent that employers reject an applicant based on a criminal conviction record, employers should be prepared to articulate the specific reason, tailored to the particular requirements of the job and the conviction at issue, among other things, why the conviction record disqualifies the applicant.

In consideration of the nuanced assessment of criminal background records required by the amended Ordinance, employers also may want to provide additional training to interviewers and other employees involved in the hiring process.

If you have any questions about this Alert, please contact 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.