Philadelphia Enacts Sweeping Changes to City’s Ban-the-Box Law

12.17.2015

By: Dina M. Mastellone

On December 15, 2015, Philadelphia Mayor Michael Nutter signed far-reaching amendments to the city’s “Ban the Box” law, the Philadelphia Fair Criminal Records Screening Ordinance (“the Ordinance”). In enacting the amendments, Philadelphia joins New York City and New Jersey in requiring that employers remove any questions on job applications related to criminal convictions as well as revise their entire criminal record screening programs. The amendments are set to become effective in 90 days, on March 14, 2016, and apply to all employers in the city — public and private — with 1 or more employees, as opposed to 10 workers in the original law. Employers hiring for domestic services, such as child or elderly care, however, are exempt from this law.

Notable amendments to the Ordinance include: (1) deferring any criminal record inquiries until after a conditional offer has been extended; (2) removing any and all questions related to criminal records from job applications (multi-state applications also may not include the question with an instruction for Philadelphia applicants not to answer); (3) removing any question in employment materials regarding the applicant's willingness to submit to a background check before a conditional offer; (4) permitting employers to go back only 7 years when inquiring about criminal history, instead of being able to look into a candidate's record indefinitely (employers may add to the 7 year period any time of actual incarceration served because of the offense); (5) rescinding any automatic rules employers may have in place to exclude candidates with criminal records from employment; (6) establishing a process for an individual assessment for each applicant; (7) reconsidering procedures when rejecting applicants based on criminal record histories; and (8) revising posted workplace notices to include notice of the Ordinance, once a poster is issued by the Philadelphia Commission on Human Relations.

The Ordinance also requires the employer to 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."

Should an applicant voluntarily discloses information regarding his or her criminal convictions during the application process, an employer may discuss the issue with the applicant at that time but must still all the prospective employee to continue with the application process.

Individual Assessment Requirements

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: (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.

Notification Requirements

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.  Applicants would then have 10 business days following the rejection to provide evidence of an inaccuracy on the report or to provide an explanation, and will have an additional 300 calendar days to file a complaint with the Philadelphia Commission on Human Relations.

Penalty Provisions

The Ordinance carries penalties including damages, attorneys' fees, and up to $2,000 in punitive damages per violation.  The Ordinance also permits a private right of action for actual damages, attorneys' fees, equitable relief, and punitive damages.

If you have any questions or for more information about the requirements of Philadelphia’s ban-the-box amendments and its impact on your business’s hiring procedures, please contact James Bucci, Partner in the Firm’s Camden, New Jersey and Philadelphia, Pennsylvania offices at 856-968-0686 or jbucci@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at 973-533-0777 or dmastellone@genovaburns.com.

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