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Amendments to Philadelphia's "Ban the Box" Law Are Now in Effect

Tim McCarthy on 5/24/2016
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On March 14, 2016, amendments to Philadelphia Fair Chance Hiring Law went into effect. Colloquially known as "Ban-the-Box," the amendments to Philadelphia's ordinance place significant restrictions on the ability of employers to conduct and consider criminal background checks in the hiring process. While the ordinance has been in effect for some time and is codified at § 9-3501 et seq., the recent amendments include a number of provisions that cannot be ignored by employers.

For decades, Pennsylvania employers have been subject to the Criminal History Record Information Act (CHRIA), which allows employers to consider a job applicant's felony and misdemeanor convictions "only to the extent to which they relate to the applicant's suitability for employment." The recent amendments to Philadelphia's ban-the-box ordinance incorporate these protections, but extend much further. First, the law now applies to all private employers with at least one employee in the City, whereas the pre-amendment ordinance applied only to employers with ten or more employees.

Moreover, whereas criminal background inquiries could previously be made after the first interview, any such questions must now be delayed until after a "conditional offer of employment" has been extended to the prospective employee. A conditional offer of employment is defined in the statute as an offer of employment "which may be withdrawn only if the employer subsequently determines that the applicant (i) has a conviction record which, based on an individualized assessment as required by [the ordinance], would reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for; or (ii) does not meet other legal or physical requirements of the job."

Any non-pending criminal arrests not resulting in a conviction may not be considered. Similarly, the ordinance makes any policy of automatically excluding applicants with a conviction per se unlawful. Instead, when a background reveals a conviction, employers may not reject the applicant unless the record "includes conviction for an offense that bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to the operation of the business or to co-workers or customers, and that exclusion of the applicant is compelled by business necessity." The ordinance enumerates six factors to be considered in determining whether the conviction record presents an unacceptable risk. Moreover, only convictions occurring fewer than seven years from the date of the inquiry may be considered (excluding any intervening periods of incarceration).

If ultimately an employer determines that an applicant's rejection is compelled by business necessity, the employer must notify the applicant in writing and attach a copy of the criminal history report. The applicant must then be afforded ten business days to provide an explanation or to dispute the record's accuracy.

A number of relatively small caveats in favor of employers have been included in the law. First, if an applicant voluntarily discloses information pertaining to his or her conviction history, the employer may discuss what has been disclosed at that time. Second, employers can give notice to applicants that a criminal background check will be conducted in the event a conditional offer of employment is ultimately made. Any such notice must be "concise, accurate, made in good faith and shall state" that the background check "will be tailored to the requirements of the job." Similarly, the ordinance expressly states that it does not apply where criminal background inquiries or adverse actions taken based on criminal history "are specifically authorized or mandated by any other applicable law or regulation."

The amendments further provide for a private right of action, the creation of a "Fair Criminal Record Screening Advisory Committee" and a posting requirement. Moving forward, private Philadelphia employers should be aware of the increased restrictions now imposed in the use of criminal background checks in hiring. Background check policies should also be reevaluated for compliance with the ordinance. A full-text PDF of the ordinance is available here.

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