Earlier this month, Philadelphia’s mayor, Michael Nutter, signed amendments to the city’s “ban the box” law. The changes to the law were significant and are scheduled to become effective on March 14, 2016.
An article by William Simmons and Thomas Benjamin Huggett from Littler Mendelson (Beyond “Ban the Box”- Philadelphia Makes Sweeping Changes to Criminal Records Screening Ordinance) summarizes the law as prior to the amendments, and then reviews the amendments. The earlier version applied to employers with 10 or more employees in Philadelphia and required that employers wait until after a “first interview” with an applicant before asking about criminal history. The law also prevented employers from considering “non-pending arrests not resulting in conviction.”
New Changes Taking Effect on March 14, 2016
The amendments to the law are wide. First, the law has been expanded to cover more employers. Instead of affecting employers with 10 or more employees working in Philadelphia as it had previously done, it will now apply to employers with at least one employee in the city.
The amendments change when criminal record inquiries can take place (moving it to after an employer makes a conditional offer of employment), requires individualized assessment for each applicant, requires employers to provide candidates with 10 business days to dispute the accuracy of information, and carries additional penalties if the law is violated.
Simmons and Huggett review the extensive changes to the law below:
- “defer any criminal record inquiries until after a conditional offer has been extended;
- remove any criminal records question from employment applications (the Ordinance specifically notes that multi-state applications may not include the question with an instruction for Philadelphia applicants not to answer);
- remove any question in employment materials regarding the applicant’s willingness to submit to a background check before a conditional offer;
- ignore any criminal record in employment decisions unless it is a conviction that occurred less than seven years ago (employers may add to the seven year period any time of actual incarceration served because of the offense);3
- rescind any automatic rules employers may have in place to exclude candidates with criminal records from employment;
- establish a process for an individual assessment for each applicant;
- reconsider procedures when rejecting applicants based on criminal record histories; and
- revise posted workplace notices to include notice of the Ordinance, once a poster is issued by the Philadelphia Commission on Human Relations.”
Corporate Screening recommends that employers read the article in its entirety. It is available at http://www.littler.com/publication-press/publication/beyond-%e2%80%9cban-box%e2%80%9d-%e2%80%93-philadelphia-makes-sweeping-changes-criminal. The conclusion is below:
“The “amendments” to Philadelphia’s Fair Criminal Records Screening Ordinance are more accurately described as a complete rewriting of the Ordinance and create a substantial risk of civil liability for employers who have criminal records screening programs, even those who have recently had a compliance review under the FCRA.5 It will be left to courts and regulators to clarify ambiguities in the Ordinance as well as whether any portions of the Ordinance, or the Ordinance in its entirety, is preempted or unconstitutional. In the meantime, employers should carefully review the impact of the Ordinance on their screening programs, as well as any analysis they may have planned to undertake for FCRA, Title VII, other equal employment opportunity compliance, or other local legislation. “
In the past, Corporate Screening has recommended employers review their application forms and other documents, and check hiring policies to ensure that they comply with the law. But with Philadelphia’s recent amendments following New York City’s Fair Chance Act, it appears to be indicative of even more restrictive “ban the box” legislation. Employers should be aware that these new laws do not just require employers to postpone asking about criminal history, but greatly increase the scope of the requirements in the hiring process.