Since 2012, the Fair Criminal Screening Standards Ordinance has prohibited most employers within the city of Philadelphia from asking about criminal convictions on job application forms. Under revisions to the so-called “Ban the Box” ordinance, which were approved by Mayor Nutter two days ago, employers will be further restricted in their approach to criminal background checks for prospective employees in several notable ways.

Conditional Offer of Employment Is the Triggering Event

Under the amended ordinance, an employer may not ask about an applicant’s past criminal convictions, or conduct a criminal background check on an applicant, unless and until the employer extends a conditional offer of employment to that applicant. The ordinance defines “conditional offer of employment” as “an offer by an employer to hire an applicant, which may be withdrawn only if the employer subsequently determines that the applicant (i) has a conviction record which, based on an individualized assessment as required by § 9-3504(2), would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or (ii) does not meet other legal or physical requirements of the job.”

No Beating Around the Bush

The amended ordinance expressly notes that the prohibition against asking an applicant about his or her past criminal convictions “shall include any question regarding the applicant’s willingness to submit to a background check.”

No “Optional” Disclosure Questions

After the ordinance took effect, some employers still included a criminal history question on employment applications, but expressly gave applicants the option to decline to answer it. The amended ordinance makes clear that this practice is prohibited. In light of this change, all covered employers should review their employment applications to ensure compliance.

Applicants Who Volunteer Information Have Opened the Door

The amended ordinance makes clear that employers are free to discuss with an applicant any criminal conviction that the applicant voluntarily discloses, and may do so at the time of disclosure.

Employers Can Give Applicants a Heads Up

Employers can tell applicants that they intend to conduct a criminal background check after any conditional offer is made, so long as the notice is concise, accurate, and made in good faith. Additionally, employers must state that “any consideration of the background check will be tailored to the requirements of the job.”

Decisions Based upon the Results of a Criminal Background Check Must Be Carefully Tailored and Individualized

Employers are not permitted to automatically exclude any applicant with a criminal conviction from a job or class of jobs. Instead, employers must conduct a careful assessment to determine whether the applicant would “present an unacceptable risk to the operation of the business or to co-workers or customers” and whether “the exclusion of the applicant is compelled by business necessity.” In making this determination, employers are required to consider the following factors:

  • 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 or employment references provided by the applicant; and
  • Any evidence of the applicant’s rehabilitation since the conviction.

Employers Must Provide Rejected Applicants with Notice and an Opportunity to Respond

If, after conducting the assessment described above, an employer decides to reject an applicant in light of a prior criminal conviction, the employer must notify the applicant in writing of the decision and the reason for it. Then, the employer must give the applicant 10 business days to provide evidence that the background check was inaccurate or provide an explanation. These requirements apply even if the applicant’s criminal history was not the sole reason for the decision not to hire.

Post the Rules

Employers must post a summary of the ordinance’s requirements in a conspicuous place on the employer’s website and on its premises. A form of this posting will be supplied by the Philadelphia Commission on Human Relations.

The amended ordinance will be enforced by the Philadelphia Commission on Human Relations — which shall have the authority to enter an order requiring the employer to cease and desist an unlawful practice, order injunctive or other equitable relief, order payment of compensatory and punitive damages, and order payment of attorney’s fees — and also includes a private right of action. The new requirements will take effect on March 14, 2016.