On March 14, 2016, the amendments to Philadelphia’s “ban the box” law went into effect. The amendments to the city’s Fair Criminal Record Screenings Standards Ordinance (the “Ordinance”), signed into law by Philadelphia’s then Mayor, Michael Nutter, on December 15, 2015, create additional restrictions under the Ordinance on how and when an employer may consider a prospective employee’s criminal background during the application process (beginning when an applicant makes an employment inquiry and ending when the employer has extended a conditional offer of employment).
The amendments make several notable changes to the Ordinance, including those changes listed below:
- Application: The Ordinance now applies to private employers which employ “any persons within the City of Philadelphia.”
- No Criminal Inquiry Until Conditional Offer: Employers are prohibited from inquiring or requiring applicants to disclose or reveal their conviction histories during the application process. However, employers may discuss any criminal convictions voluntarily disclosed by applicants.
- No Inquiries on Employment Applications: Employers are prohibited from asking any questions regarding an applicant’s criminal conviction history on a job application, even if certain applicants are told they need not answer the question(s) regarding criminal convictions.
- No Automatic Exclusions: Employers are prohibited from “automatically excluding any applicant with a criminal conviction from a job or class of jobs.” Rather, prospective employers may only reject an applicant based on his or her criminal record if the “record includes conviction for an offense that 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.”
- Individualized Assessment: The Ordinance provides that before an employer makes any determination regarding potential business risk stemming from an applicant’s criminal record, the employer must review “the applicant’s specific record and the particular job being sought” and specifically consider: (a) the nature of the offense; (b) the time that has passed since the offense; (c) the applicant’s employment history before and after the offense and any period of incarceration; (d) the particular duties of the job being sought; (e) any character or employment references provided by the applicant; and (f) any evidence of the applicant’s rehabilitation since the conviction.
- Seven-Year Look Back Period: Employers may only consider a conviction “to the extent that the conviction occurred fewer than seven years from the date of the inquiry.” Periods of incarceration are not included in the calculation of the seven-year period.
- Notice: If an employer rejects an applicant at least in part based on his or her criminal record, the employer must provide to the applicant (1) written notification of the decision and its basis; and (2) a copy of the criminal history. The applicant then has ten business days to “provide evidence of the inaccuracy of the information or to provide an explanation.”
- Penalties: Each violation of the Ordinance is now a “Class III” offense, and the Philadelphia Commission on Human Relations (the “Commission”) may order remedies, including, but not limited to: a cease and desist order; any injunctive or other equitable relief; compensatory damages; punitive damages not to exceed $2,000 per violation; and reasonable attorneys’ fees. Aggrieved individuals also have a private right of action under the Ordinance if the Commission finds insufficient evidence to support a violation.
For questions regarding ban the box laws in Pennsylvania and New Jersey, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.