On April 1, 2011, the Philadelphia City Council passed by a 13-4 vote an Ordinance that will enact a new chapter, the “Fair Criminal Record Screening Standards” (the Ordinance) to Title 9 of the Philadelphia Code, which regulates businesses, trades and professions. Philadelphia Mayor Michael Nutter is expected to sign the Ordinance, and it will become effective 90 days later. The Ordinance prohibits employers from asking criminal history questions on job applications and in first job interviews. Accordingly, Philadelphia employers may no longer ask on their employment applications whether an applicant has ever been arrested for or convicted of a crime.

The Ordinance applies to city agencies and private employers that employ 10 or more persons within the City of Philadelphia. The Ordinance makes it an unlawful discriminatory practice to inquire about or take any adverse action against a person on the basis of an arrest or criminal accusation. It also makes it an unlawful discriminatory practice to inquire about or require a person to disclose any criminal convictions during the application process and before or during the first interview, whether the interview occurs in person or by telephone. If an employer does not conduct an interview, the employer may not ask or gather any information about an applicant’s criminal convictions. If an applicant voluntarily discloses such information, the employer may discuss the criminal conviction with the applicant.

The Ordinance that was ultimately passed by City Council is less draconian than the original bill, which would have prohibited employers from conducting criminal records checks unless one was required by law or the employer had made a good-faith determination that the particular job was sensitive enough to warrant a criminal records check. Under the Ordinance as enacted, employers are permitted to conduct criminal records checks after the first interview. To comply with the Ordinance, employers covered by the Act should remove from their employment applications any questions regarding criminal arrests or convictions, and should refrain from asking any questions about arrests or convictions before or during a first interview. Further, under Pennsylvania state law, employers should make employment decisions based on criminal convictions only to the extent that those convictions relate to an applicant’s suitability for the job for which he or she is applying. See 18 Pa. C.S. § 9125. The ordinance does permit employers to comply with other applicable laws that permit inquiries about criminal convictions during the application process.

The legislative findings prompting the Ordinance include that persons of color are convicted in numbers that are disproportionate to their representation in the population. Based on a similar finding, the Equal Employment Opportunity Commission, as previously reported, has increased its scrutiny of employers’ use of criminal background checks (http://www.pepperlaw.com/publications_update.aspx?ArticleKey=1702). Consequently, although the Ordinance recognizes an employer’s right “to choose the most qualified and appropriate applicant,” employers should be careful in how they use criminal history in making employment decisions. The best course is to evaluate on a case-by-case basis whether a particular conviction should bar employment in a particular position.