Employers across the country have for years relied on a standard check box on their employment applications that asks each applicant whether he or she has been convicted of a crime. However, a “Ban the Box” movement is now growing across the country in an effort to persuade lawmakers to make such a check box illegal. With the signing of the Fair Criminal Record Screening Standards Ordinance into law earlier this month, the City of Philadelphia has also taken up the cause.
The Philadelphia Ordinance, which takes effect on July 12, 2011, and applies to employers with 10 or more employees in Philadelphia, does not ban the “box” per se, but it does heavily regulate when, and under what circumstances, an employer may inquire into an applicant’s criminal history. Specifically:
- The Ordinance prohibits employers from inquiring into an applicant’s criminal history during the application process, which begins when the applicant inquires about the job and ends when the employer accepts the job application;
- The Ordinance prohibits employers from inquiring into an applicant’s criminal history before or during the first interview -- an “interview” being broadly defined as “any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant’s qualifications;”
- If there is no interview, the Ordinance prohibits the employer from inquiring into or gathering information about the applicant’s criminal history; and
- The Ordinance makes it unlawful for an employer to inquire about or to take any adverse action against an individual on the basis of an arrest or criminal accusation that is not then pending and did not result in a conviction.
In practice, this means that employers in Philadelphia may not include on their employment applications any inquiry into an applicant’s criminal history, and may not inquire (i.e., through questions to the applicant or a background check) about an applicant’s criminal history until after the first interview is complete. Each violation of the Ordinance constitutes an offense and subjects the employer to a fine.
To Philadelphia employers, the sensitivity to arrest and conviction information is not new. Pennsylvania, like a sizable minority of other states, has long restricted an employer’s use of an individual’s criminal convictions in employment decisions. Under Pennsylvania law, an employer may only consider an applicant’s felony or misdemeanor convictions to the extent they relate to the applicant’s suitability for employment in the position for which he or she applied. An employer must also provide written notice to the applicant if the employer’s decision not to hire is based in whole or in part on the applicant’s criminal record information. Additionally, the U.S. Equal Employment Opportunity Commission, and similar state agencies, continue to take the position that blanket prohibitions against hiring individuals with convictions works a disparate impact on certain minority groups and thus violates anti-discrimination laws; they have taken action against employers whom they believe have such policies or practices.
Employers operating outside of Philadelphia are not immune from “Ban the Box” provisions, or at least may not be for much longer. A number of jurisdictions across the country, including state and local governments, have already adopted some variation of the provisions. Massachusetts and Hawaii, for example, have such laws applying to both private and public employers, while other jurisdictions, such as Connecticut, Minnesota, New Mexico, Boston, Chicago, and San Francisco, have adopted some variation of the concept for public employers.
Given these developments, we recommend that Philadelphia employers review their hiring policies, including checking their employment applications and removing any inquiries about the applicant’s criminal history. Employers who continue to rely on applicants’ criminal histories as part of the hiring decision must be sure to perform interviews of such applicants – which can be brief and done over the phone – and wait to check (or even inquire into) criminal histories until after the first interview.
Employers outside of Philadelphia should take note of this growing movement and consider whether any standard employment form used across jurisdictions complies with the laws in those jurisdictions.