Which of the following statements by an employer is illegal in Philadelphia?
- I would never hire a vegetarian.
- No ugly people will be hired here.
- I hate dyed hair. If the carpet doesn’t match the drapes, no job for you.
- Our policy is never to hire murderers, rapists, or child pornographers.
Answer: (D). Only (D) is illegal.
Huh? Philadelphia, several other cities, and six states have ban-the-box laws prohibiting private employers from asking about criminal history on an initial job application. Most of those laws, however, still allow employers the flexibility to deny ex-offenders jobs, at least after individually considering their convictions and the nature of the job being sought.
A new city ordinance signed by Mayor Nutter on December 15th, however, provides convicted felons with a new level of job protection in the City of Brotherly Love.
And so, a brotherly love letter:
Dear Convicted Felons:
About those rape and arson convictions in 2000, no biggie. Private employers in Philly are no longer allowed to consider any convictions more than seven years old, or more than seven years since incarceration ended. To my friends with fraud and embezzlement convictions, if you were released from prison in 2007 or earlier, now is the time to start applying for accounting and finance jobs. Your slate has been wiped clean.
For those of you convicted more recently, there’s plenty of good news for you too. Employers cannot ask you any questions about criminal history until a conditional job offer has been made. Philadelphia law used to require employers to wait until your job interview to ask, but this new law requires employers to make a conditional job offer before they can inquire into your criminal background. When prepping for that job interview, remember that first impressions last. Wow them before they learn about your convictions for selling crystal meth. But sit back for now and take the next few weeks to polish your resume. The new job protections take effect March 14, 2016.
Even after your employer learns about your convictions, your past mistakes cannot be used to deny you employment unless the company “reasonably concludes” that your hire would “present an unacceptable risk to the operation of the business or to co-workers or customers.” That’s great news! A normal level of caution is no longer enough to deny you that job at the food truck outside the elementary school. Risk to the public can’t be considered. What matters is risk to the operation, co-workers, or customers only, and the risk must be unacceptable. But wait, there’s more good news! The company must also conclude that your exclusion is “compelled by business necessity.” Not “consistent with business necessity” like those pesky discrimination laws. Compelled. I looked it up to make sure I understood. Compelled means forced or required. The company needs to reach both conclusions before it can revoke your offer.
And don’t worry, the law also makes sure that your new boss cannot just jump to those conclusions. Instead, the new law requires the company first to review your “specific record” (thank you, prosecutor, for that plea bargain from assault down to public nuisance!) and to review the “particular job being sought” (thankfully, child molestation has nothing to do with operating a machine press; no kids work at this shop!).
The employer must then conduct an “individualized assessment of the risk presented” by considering each of six specific 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 job 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.
Ok, suppose these hurdles are still too high and the company wants to revoke your job offer anyway. They can’t just revoke it. They first have to give you written notice of the basis for the potential decision, a copy of the background check, and ten business days (two weeks!) to respond. You can respond by providing evidence of any inaccuracy, or you can provide an explanation. Or maybe gather some character references that the company is required to consider (Part E!). They can’t revoke your job until the full ten business days have passed.
Don’t worry if you want to work for a small employer. Under the old law, Philly’s ban-the-box requirements applied only to employers with ten or more employees in the city. The new rules apply even if the employer has only one employee. Contract workers are protected too. There’s never been a better time to be an ex-offender!
If you feel like filing a lawsuit over technicalities, there’s good news for you in that area too. It is against the new law for a multi-state employer to use an application that has a criminal background question on it, even if the application tells applicants in Philadelphia not to answer that question. An employer also breaks the law if it fails to post a summary of the new law in a conspicuous place at the worksite. You can get compensatory damages, punitive damages, and injunctive relief. Best of all, your lawyer can get rich too. Attorneys fees are available.
Be sure not to slip up and mention your criminal background by mistake, or the employer is free to ask about it.