Philadelphia Makes Sweeping Changes to Criminal Records Screening Ordinance

By William Simmons and Thomas Benjamin Huggett Dec 21, 2015
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On Dec. 15, Mayor Michael Nutter signed sweeping amendments to Philadelphia’s so-called “ban the box” law, the Philadelphia Fair Criminal Records Screening Ordinance. In enacting the amendments, Philadelphia joins a growing number of jurisdictions, including most recently Portland and New York City, mandating that employers revise their entire criminal record screening programs, not just modify or remove the criminal records question on their employment applications. The amendments are set to become effective March 14, 2016.

Previous Ban the Box Ordinance

Previously, Philadelphia’s ban the box ordinance primarily required employers to postpone any criminal record inquiries until after a “first interview” with an applicant (which was defined very broadly to include even telephone screening interviews) and prohibited employers from considering non-pending arrests not resulting in conviction. There was no private right of action under the ordinance, which carried an administrative penalty of $2,000. The ordinance also applied only to employers with at least 10 employees in Philadelphia.

Major Amendments

Now, with limited exceptions, Philadelphia will require all employers with at least one employee in Philadelphia to:

  • Defer any criminal record inquiries until after a conditional offer has been extended.
  • Remove any criminal records question from employment applications (the ordinance specifically notes that multi-state applications may not include the question with an instruction for Philadelphia applicants not to answer).
  • Remove any question in employment materials regarding the applicant’s willingness to submit to a background check before a conditional offer.
  • Ignore any criminal record in employment decisions unless it is a conviction that occurred less than seven years ago (employers may add to the seven year period any time of actual incarceration served because of the offense).
  • Rescind any automatic rules employers may have in place to exclude candidates with criminal records from employment.
  • Establish a process for an individual assessment for each applicant.
  • Reconsider procedures when rejecting applicants based on criminal record histories.
  • Revise posted workplace notices to include notice of the Ordinance, once a poster is issued by the Philadelphia Commission on Human Relations.

The ordinance makes two relatively minor concessions to employers. First, if an applicant voluntarily discloses information regarding his or her criminal convictions during the application process, the employer may discuss the issue with the applicant at that time. Second, an employer may give notice of its intent to conduct a criminal background check after any conditional offer is made. The ordinance specifies that the notice must be “concise, accurate, made in good faith, and shall state that any consideration of the background check will be tailored to the requirements of the job.”

The ordinance carries additional penalties, such as the potential for an administrative assessment of damages, attorneys’ fees, and up to $2,000 in “punitive damages” per violation. The ordinance now also includes a private right of action for actual damages, attorneys’ fees, equitable relief, and punitive damages. There is no default statutory damages penalty, so the amount of potential liability for purely technical violations of the ordinance’s requirements that cause no actual damage is unclear.

Individual Assessment

In requiring the elimination of any automatic rule excluding candidates with specific types of criminal records, the new amendments specifically require that employers consider the following for each employee:

  • The nature of the offense.
  • The time that has passed since the offense.
  • The applicant’s employment history before and after the offense and any period of incarceration.
  • The particular duties of the job being sought.
  • Any character or employment references provided by the applicant.
  • Any evidence of the applicant’s rehabilitation since the conviction.

Under Pennsylvania state law, 18 Pa. C.S. Section 9125, employers are already required to assess whether convictions “relate to the applicant's suitability for employment in the position for which he has applied” before using them to take adverse action. But no statutory requirement in Pennsylvania requires specific consideration of the factors identified in the Philadelphia amendments.

Notification Requirements

As noted above, employers must also assess their notification procedures when an applicant is rejected as a result of criminal record history. The amended ordinance now states: "If an employer rejects an applicant for a job opening based in whole or in part on criminal record information, the employer shall notify the applicant in writing of such decision and its basis, and shall provide the applicant with a copy of the criminal history report. The employer shall allow the applicant ten (10) business days to provide evidence of the inaccuracy of the information or to provide an explanation."

Ten business days is the longest period an ordinance to date has specified for allowing employees to address reported criminal records with their employers.

William Simmons and Thomas Benjamin Huggett are attorneys in the Philadelphia office of Littler. Republished with permission. © 2015 Littler. All rights reserved.

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