A recent amendment has extended the provisions of Philadelphia’s “Ban the Box” law, requiring businesses with even one employee to exclude certain information about criminal backgrounds from the employment interview process.
Ban the Box initiatives are ordinances enacted at the state or local level to restrict information businesses can request from prospective employees about past criminal convictions. The “box” in the laws’ names refers to a question on employment applications asking if the applicant has been convicted of a crime.
Philadelphia’s Ban the Box law, officially known as the Fair Criminal Records Screening Standards Ordinance, took effect in 2012 and requires that employers not conduct criminal background screenings or ask questions related to criminal convictions until after a first employment interview. In addition, employers are prohibited from considering arrests that did not result in a conviction.
What Does the Amendment Change?
The amendment, which went into effect in March, is intended to increase employment opportunities for the 300,000 Philadelphia residents with criminal records. The amended law now:
- Applies to more employers — those with even one employee, as opposed to a minimum of 10 previously.
- Requires that employers make a conditional job offer before running a criminal background check on an applicant.
- Prohibits consideration of criminal records that are more than seven years old.
- Requires employers to notify job applicants if they are rejected based on their criminal background.
VerifyProtect.com has already modified screening practices to comply with the amended law for Philadelphia clients.
No Blanket Exclusions
The amended law prohibits any blanket exclusions of applicants due to criminal backgrounds; instead, employers must consider several factors relating to any past criminal offenses:
- The nature and seriousness of the offense.
- How much time passed since the offense was committed.
- The applicability of the crime to the specific job sought and its duties.
- Indications of rehabilitation of the applicant since the conviction.
- Employment or character references the applicant provides.
- The applicant’s employment history before and after the offense and during any period spent in incarceration.
The new law also gives applicants opportunities to review the information that the prospective employer sees and correct any errors. In addition, applicants can discuss any past criminal issues with the employer. An applicant who believes an employment denial is based on an old or irrelevant criminal record can complain to the city’s Commission on Human Relations.
When Can Applicants Be Rejected?
Under the amended law, employers can reject applicants based on a criminal record only when the offense presents an unacceptable risk because of its relationship to the position sought and when the applicant’s exclusion is a “business necessity.” Pennsylvania state law already imposed a similar requirement; employers must determine whether a conviction relates to the suitability of an applicant for a particular position. The requirements under the new amendment add to the protections already provided to applicants under the existing law.
In addition, the new amendment requires that criminal background checks be conducted only after a “conditional” offer of employment has been made. The conditional offer can be rescinded due to a criminal record under only two circumstances:
- The applicant’s conviction record would lead an employer to reasonably conclude that the applicant poses an “unacceptable risk” in the specific position.
- The applicant does not meet physical or legal requirements for the specific position.
Enforcement Provisions
The new amendment also made changes to enforcement of the law, which is administered by the Philadelphia Commission on Human Relations. The law as it previously stood imposed a fine; the new law adds a private right of legal action that is available to applicants who believe they have suffered illegal discrimination under the ordinance. A job applicant has 300 days to report an alleged violation to the commission.
The commission has the authority to order a number of legal remedies, including:
- Issuing a cease and desist order.
- Awarding injunctive or “other equitable relief.”
- Awarding compensatory damages.
- Awarding punitive damages, with a limit of $2,000 per violation.
- Awarding payment of attorney’s fees.
The commission has a year to determine whether sufficient evidence exists to rule that a violation occurred. If the commission does not find sufficient evidence in that time, it must notify the complaining applicant that the case has been dismissed. The complaining applicant has two years from such a notification to file a court action against the employer.
The Bottom Line on Ban the Box
Based on the recently passed amendment to the Fair Criminal Records Screening Standards Ordinance, Philadelphia employers now have a number of new responsibilities in the course of hiring workers. Employers should not ask about criminal backgrounds — including on application forms — during the interview process.
If a prospective employee voluntarily discloses information about a criminal record, an employer may ask questions. However, a criminal background check should not be conducted until the employer has made a conditional employment offer. In addition, if an applicant will be disqualified because of a criminal conviction, employers must document the individual review of the factors required by law, and they must give appropriate notice to the prospective employee.
With so many recent changes to the law, it’s important that employers review existing procedures and adjust background check processes to comply with the new rules. VerifyProtect.com is fully versed in the requirements for employers under both the previously existing and amended laws and can guide you in minimizing risk during the background screening process. For a personal consultation about your specific business needs, please call us at (888) 219-4945 or complete our contact form. We look forward to working with you to ensure that your business fully complies with Philadelphia’s amended Ban the Box law.
