Employers in Philadelphia will soon need to revise the criminal history questions on their employment applications based on a recent law. On April 13, 2011, City of Philadelphia Mayor Michael Nutter signed Bill No. 110111-A, which was passed by the Philadelphia City Council on March 31, 2011. The law will become effective 90 days after its enactment, or July 12, 2011. Philadelphia’s new “Fair Criminal Record Screening Standards” establishes provisions and requirements for the use of criminal history information by certain employers within the City of Philadelphia. Among other things, the new law prohibits employers from engaging in “unlawful discriminatory practices” such as including criminal history questions on employment applications and from making adverse employment decisions based on arrests that did not result in convictions.

The New Ordinance Impacts A Majority Of Employers With Philadelphia-Based Employees

The new ordinance specifically prohibits both public and private employers with 10 or more employees within the City of Philadelphia from requiring applicants to disclose their criminal history until after the employer accepts the employment application and conducts the first telephone or in-person employment interview. In other words, the new law “bans the box” on employment applications used to identify whether an applicant has any criminal convictions, under the ordinance, use of the “box” would be an “unlawful discriminatory practice.” Further, an employer that does not conduct an initial telephone or in-person employment interview is barred from making any inquiries or gathering any information about the applicant’s criminal convictions. If the applicant voluntarily discloses any information about his or her criminal convictions at the first employment interview, however, then the employer may discuss the criminal convictions disclosed by the applicant. The ordinance also bars employers from inquiring about or taking adverse action against an applicant on the basis of an arrest or criminal accusation that is not pending and that did not result in a conviction. Under the ordinance, this would also be an “unlawful discriminatory practice.”

The new Philadelphia ordinance does not prohibit employers from using criminal history information after the first telephone or in-person employment interview so long as they do not inquire about arrests or criminal accusations that are not pending or that did not result in convictions. The ordinance also does not apply to “Criminal Justice Agencies,” as that term is defined in the ordinance. Neither does the ordinance supersede inquiries or adverse employment actions specifically authorized by any other applicable law.

There Is A Nationwide Trend In “Ban The Box” Legislation

Bill No. 110111-A is the newest piece of legislation resulting from the recent trend of states, cities, and counties imposing further restrictions on employer inquires into criminal history by limiting what can be asked on an employment application. Most of these laws and ordinances are limited to public employers, however, some impact private employers as well. On the statewide level, California, Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico have all enacted some form of “ban the box” laws. Massachusetts and Hawaii, however, are the only states that have “ban the box” laws covering private employers. Massachusetts’ law was discussed in detail in our August 10, 2010 Management Alert (click here to read). In Hawaii, public and private employers have long been prohibited from inquiring about an applicant’s criminal history until after a conditional offer of employment is made.

At a more local level, 26 cities and counties in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, and Washington have also enacted “ban the box” laws. Similar to the statewide laws, these local laws typically only apply to public employers. Philadelphia is the first major city to pass an ordinance that expressly covers private employers. Some of the local laws in Connecticut and Massachusetts, however, also impact private employers. For example, the City of Hartford passed a “ban the box” law that applies to both the City of Hartford and its vendors. Hartford’s “ban the box” law also prohibits background checks until after a conditional offer of employment is made. Similar “ban the box” laws applying to both cities and their vendors were also enacted in the Massachusetts cities of Worcester, Boston, and Cambridge. The inclusion of “vendors” in Boston’s “ban the box” law is particularly significant because it impacts more than 50,000 private employers.

The “ban the box” trend continues as additional state laws and city ordinances are being introduced throughout the nation, including, but not limited to, Indiana and Washington D.C. as well as Los Angeles, Newark, Durham, and Ann Arbor. For example:

  • Senate Bill 391 is currently pending in Indiana. If enacted, the statewide law provides that an employer may not inquire whether an employee or potential employee has been: (1) arrested or charged with a misdemeanor or felony that did not lead to a conviction; (2) convicted of or pleaded guilty to a misdemeanor if five years have passed since the date the person completes the person’s sentence and satisfies any other obligations imposed on the person as a part of the sentence; or (3) adjudicated a delinquent for an act that would have been a crime if committed by an adult. Senate Bill 391 is currently in committee.
  • In December 2010, the Counsel for the District of Columbia voted to “ban the box” inquiring about criminal history information on applications for D.C. government jobs. As follow-up legislation, B19-0017, otherwise known as The Human Rights for Ex-Offenders Amendment Act of 2011, was introduced and is currently pending in Washington D.C. If enacted, the local law would require employers to hold off on criminal background checks until after a final offer of employment is made. Even then, employers can revoke final offers only if the criminal convictions revealed in the background checks are relevant to the job. B19-0017 is currently in committee and there is discussion about expanding the law to cover D.C. vendors and/or private employers.

Employers Should Respond To These New Laws And Ordinances

Because of the new Philadelphia ordinance and other pending state and city legislation, employers should be re-evaluating their pre-employment and hiring practices. Specifically, employers impacted by “ban the box” laws should review their employment applications to ensure that any questions regarding an applicant’s criminal history are legally compliant. Impacted employers should also make sure all hiring/recruiting managers are apprised of the new laws through training and revision of policies. Employers should also be aware of the limitations on requesting and using criminal history information throughout the hiring process and have discussions with their background screening providers to ensure they know what information they are getting.

There are still many questions surrounding the application and administration of these new and proposed “ban the box” laws and ordinances.