Labor & Employment

Action Item: On March 14, 2016, Philadelphia’s “Ban the Box” ordinance will expand to prohibit all private employers and city agencies from inquiring into a prospective employee’s criminal history prior to making a conditional offer of employment. Philadelphia employers should review the ordinance closely because it includes specific requirements about the use of criminal background checks in hiring and imposes significant penalties for non-compliance.  

Philadelphia’s “Ban the Box” ordinance, officially known as the “Fair Criminal Record Screening Standards” ordinance, became law in 2012.  As we wrote at the time, the ordinance bans unlawful employment discrimination on the basis of a job applicant’s criminal history.  While the original 2012 “Ban the Box” ordinance applies to Philadelphia employers with 10 or more employees, the amended ordinance, which goes into effect on March 14, 2016, will apply to all private employers, regardless of size, throughout the city, and to all city agencies.

Many of the amendments to Philadelphia’s “Ban the Box” ordinance follow New York City’s recently implemented “Fair Chance Act.”  Among other changes: Philadelphia’s amended ordinance:

• Restricts employers from inquiring about a prospective employee’s criminal history until a conditional offer of employment is made.  The pre-amendment ordinance only restricted employers from asking about criminal history before or during an initial job interview.
• Prohibits employers from withdrawing a conditional offer due to criminal history unless the prospective employee’s criminal record “bear[s] such relationship to 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.” This analysis must use an “individualized assessment of the risk presented” in light of the prospective employee’s “specific record and the particular job being sought” and must consider six specific factors set forth in the amended ordinance.
• Bars consideration of any conviction that occurred more than seven years prior to the date of a background check (excluding any period of incarceration).
• Establishes specific notice requirements that an employer must follow in order to withdraw a conditional offer of employment based on criminal history (similar to the requirements under the Fair Credit Reporting Act).

In addition, the amended ordinance specifically prohibits any inquiry into criminal history on a job application, even if the application instructs applicants in certain cities or states that they do not need to answer such questions.  The practical impact of this prohibition is that employers who use the same application in multiple cities or states must adjust the application they use for Philadelphia applicants to exclude any reference to criminal convictions.

Philadelphia employers should also be aware that they must post a workplace poster summarizing the amended ordinance, copies of which may be obtained from the Philadelphia Commission on Human Relations.