United States: Philadelphia's "Ban the Box" Ordinance Now Applies To All Private Employers

New amendments to the Philadelphia "Ban the Box" ordinance, signed into law by former Mayor Nutter in January, will take effect on March 14, 2016. The current law, also known as the "Fair Criminal Records Screening" ordinance, prohibits private employers with 10 or more employees in Philadelphia from asking a Philadelphia applicant about criminal convictions until after the initial employment interview. Borrowing generously from the Equal Employment Opportunity Commission's guidance on the use of criminal background checks in hiring, the amendments extend the reach of the existing law to more businesses and impose additional restrictions on the use of background checks and criminal records in the hiring process.

Critical Changes

More employers covered The ordinance now applies to all employers with at least one employee in the City of Philadelphia.

Applications may not include criminal history questions Employers may not include criminal history questions on employment applications provided to Philadelphia applicants. Because it will no longer be compliant to direct Philadelphia applicants not to answer such questions, multistate employers will need to use a separate application form for Philadelphia applicants or remove criminal history questions from its multistate application altogether.

Background checks are barred until after conditional offer of employment, and are subject to other limitations Employers must now wait until after making a conditional job offer to conduct background checks. Other significant new limitations include:

  • Employers may only consider the applicant's criminal history for seven years from the date of the background check (excluding any periods of incarceration).
  • A conditional job offer may only be withdrawn based on a conviction record that reasonably leads the employer to conclude that the applicant either would "pose an unacceptable risk in the position applied for" or that the applicant "failed to meet legal or physical requirements of the job."
  • An employer must engage in an individualized risk assessment before rejecting an applicant based on the applicant's criminal history. This risk assessment must consider the applicant's record in light of the "particular job being sought" and take into account the following six factors: (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 being sought; (5) any character or employment references provided by the applicant; and (6) any evidence of the applicant's rehabilitation since the conviction.
  • Notice must be given to any applicant who has been disqualified based on a conviction and the applicant must have 10 days to offer proof that the background check is inaccurate or to provide an explanation.

Posting requirement Philadelphia employers must post a workplace notice summarizing the amended ordinance.

New penalties for non-compliance. The ordinance will now administered by the Philadelphia Commission on Human Relations. In addition to administrative fines available under the current law, the Commission may order injunctive relief and award compensatory and punitive damages as well as attorneys' fees. The amendments also create a private right of action for rejected applicants who believe that they have been a victim of discrimination.

Action steps for Philadelphia employers

  • Review your hiring policies, procedures and standard forms (including all application materials) for all jobs in Philadelphia to ensure compliance with the new requirements.
  • Train all personnel involved in hiring not to inquire about criminal history or conduct criminal background checks until after a conditional job offer.
  • Document consideration of the required six factors when considering criminal convictions as a potential bar to employment.
  • Obtain required poster from the Philadelphia Commission on Human Relations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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