On March 14, 2016, the recent amendments to Philadelphia’s Fair Criminal Screening Standards Ordinance (“Ban the Box”), signed by former Mayor Michael Nutter, will officially take effect. The intent of the ordinance is to make sure that employers make hiring and other employment decisions based on relevant work qualifications without improperly considering a person’s criminal record. However, the recent overhaul of increased restrictions are far-reaching, and essentially creates a significant increase in risk of civil liability for employers with criminal background screening policies and procedures.
The following is a highlight of the most significant changes:
- 1. Expansive Coverage: The former Ordinance only applied to employers with ten (10) or more employees, whereas now the Ordinance applies to all private employers with at least one employee.
- 2. New Notification Requirement: If an employer rejects an applicant and that decision is based in any way on their criminal record, the employer must notify the applicant in writing and provide the applicant with a copy of the criminal history report. The employee then is permitted ten (10) days to contest the accuracy of the report or provide an explanation.
- 3. New Posting Requirement: Employers will now be required to post a workplace notice of the Ordinance in a form to be released by the Philadelphia Commission on Human Relations, providing employees an opportunity to review the Ordinance.
- 4. Deferred Use: Previously, employers could conduct criminal background checks after the first interview. The amended Ordinance now requires employers to defer conducting the checks until they have made a conditional offer of employment to an applicant. Employers are prohibited from including any questions about criminal history in their job applications, whether or not the applicants are told they need not answer the question. Only if an applicant voluntarily discloses his or her criminal history, can the employer discuss the record with the applicant prior to a conditional offer being made. The Ordinance also allows an employer to give notice of itsintent to conduct a criminal background check after a conditional offer is made. 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.”
- 5. Seven-Year Look-Back: The new Ordinance now places a temporal restriction on which criminal convictions can be considered: only convictions occurring within a seven-year period to the date of the inquiry, excluding any periods of incarceration, may be considered by employers.
- 6. Individualized Assessment: The new Ordinance eliminates automatic exclusion of candidates with specific types of criminal records, instead requiring employers to make an individualized assessment of the relationship between the conviction and the particular job being applied for. Specifically, the Ordinance requires employers to 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 of employment references provided by the applicant; and
- Any evidence of the applicant’s rehabilitation since the conviction.
While Pennsylvania state law, under 18 Pa. C.S. § 9125, already requires employers to assess whether a conviction “relates to the applicant’s suitability for employment in the position for which he has applied” before taking an adverse action, these specific factors are unique to the Philadelphia requirements.
- 7. Application to Non-Traditional Employment. While the amendments to Ban the Box have not changed its application to “contracted work, contingent work and work through the services of temporary or other employment agency; or any form of vocational or educational training with or without pay”, it is important to note that the widespread changes will also affect employers in these non-traditional settings.
- 8. Creation of Private Right of Action. The new Ordinance creates a private right of action for individuals to seek recourse in court. However, this is only available to claimants after the exhaustion of the administrative process, which consists of an initial filing of a complaint with the Philadelphia Commission on Human Relations (within 300 days of the alleged violation), an investigation period, and, if appropriate, an imposition of penalties on the employer. Penalties range from a cease and desist order and injunctive or other equitable relief to payment of compensatory damages, payment of punitive damages up to $2,000 per violation, and reasonable attorney’s fees. Perhaps one of the most important factors of this law is the attorney’s fees feature. Providing for attorney’s fees will give life to the law and motivate Plaintiffs lawyers; employers beware. Of course, it will be the court’s task to clarify any ambiguities that arise from these significant changes. Employers should consult with experienced employment counsel to carefully review screening policies and practices for compliance with these “Ban the Box” issues.