On December 15, 2015, Philadelphia’s former Mayor, Michael Nutter, signed off on an amendment (“the Amendment”) to the Fair Criminal Record Screenings Standards Ordinance (“the Ordinance”). The Amendment, which tightens the already-stringent regulations on Philadelphia employers, becomes effective this Wednesday, March 16, 2016. The Amendment does not affect employers’ right to engage in any inquiries or adverse actions that are specifically authorized or mandated by any other applicable law or regulation.
The Expansion of the Ordinance
The Amendment, which takes the city’s stance on “banning the box” one step farther, prohibits employers from inquiring into an applicant’s criminal conviction history until after a conditional offer of employment has been made. Moreover, the Amendment expands the Ordinance’s reach, banning questions regarding an applicant’s willingness to eventually submit to a background check and emphasizing that any prohibited application inquiries are unlawful, even if placed alongside a disclaimer that certain applicants need not answer the question.
Even more onerously, the Amendment places new regulations on employers’ internal hiring policies and practices. It is now unlawful for an employer to maintain or adopt any policy automatically excluding an applicant with a criminal conviction from a class of jobs. Employers may only reject prospective employees based on a criminal record if the record includes a conviction 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.”
The Amendment even goes so far as to dictate how employers must assess whether an applicant’s criminal history presents an “acceptable risk” to its operation. Employers are required to review the applicant’s “specific record” in light of the “particular job” being sought, considering six factors: the nature of the offense; the time that has passed since the offense; the applicant’s employment history before and after any period of incarceration; the particular duties of the job being sought; any character or employment references provided by the applicant; and evidence of the applicant’s rehabilitation since the convictions.
Finally, even after an employer has complied with this entire process, the Amendment prohibits employers from considering any criminal conviction occurring seven or more years in the past, noting that time spent incarcerated will not be included in the calculation of the seven-year look back period. Should an employer ultimately reject an applicant based in whole or in part on his or her criminal history record, the employer must notify the applicant, in writing, of the basis for its decision and allow the applicant ten business days to provide evidence of inaccuracies or otherwise provide an explanation.
Employers are permitted to give notice to applicants of the ultimate intent to conduct a criminal background check, but must also explain that such background check (1) will only be conducted after a conditional offer is made, (2) will be concise, accurate, and made in good faith, and (3) will only be considered as tailored to the requirements of the position sought. Where an employee voluntarily discloses information regarding a criminal conviction during the application process, the employer may discuss the conviction disclosed at that time.
The Amendment also increases the penalties employers may be subject to for violating the Ordinance. Now, not only will each violation constitute a “Class III” offense, but the Philadelphia Commission (“the Commission”) may order employers to comply with the following remedies: cease and desist orders; injunctive or equitable relief; compensatory damages; punitive damages (not to exceed $2,000 per violation); and payment of reasonable attorneys’ fees. Moreover, allegedly aggrieved individuals now have a private right of action upon the Commission’s determination that evidence is insufficient to support a violation.
What Covered Employers Should Do
- Delay any manual or “automatic” criminal background checks or procedures until after a conditional offer of employment has been made.
- Amend any and all job requirements considering criminal convictions of seven years or older.
- Amend internal policies and develop a practice keeping a written record of compliance with the Amendment’s “assessment process,” should you ultimately make a hiring decision based on an applicant’s criminal history record.
- Warn, in writing, every recruiter, employee, or employer agent involved in the hiring process not to ask questions or otherwise seek information (as in emails) about an applicant’s past convictions at any point before an employee has received a conditional offer of employment.
If you have any questions as to whether your current hiring procedures comply with the Amendment, consult with legal counsel immediately. For more information on the City’s Ban-The-Box Ordinance, generally, see our previous blog post, “Philadelphia Joins the Movement To Ban Inquiries into Arrests and Convictions on Employment Applications.”