Philadelphia’s “Ban the Box” Law Amendment Further Restricts an Employer’s Ability to Consider Criminal Histories of Prospective Employees

By Philip J. Morin III & Nishali Amin Rose       NishaliRose_cropped.jpgPhilMorin.jpg

On December 15, 2015, former Philadelphia Mayor Michael Nutter signed an amended version of 2011’s  Fair Criminal Records Screening Standards, otherwise known as the “Ban the Box” law, that further restricts employers’ inquiries into applicants’ prior criminal histories. The amended ordinance will go into effect March 14, 2016.

 

The key provisions of the amendment include:

  • Expands the scope of the law to virtually all businesses with one or more employees
  • Restricts the look-back period for criminal histories to seven years, and
  • Requires employers to consider specific factors when rejecting an applicant based on criminal history
  • Provides for a private right of action by applicants against prospective employers

Background on “Ban the Box” Laws

The purpose of the original “Ban the Box” legislation was to restrict when employers could ask applicants about prior criminal history. The policy behind the law is based upon statistical data demonstrating that certain racial and ethnic groups are more likely to have a criminal history. By removing this question from the initial application, applicants from these communities with criminal backgrounds will receive interviews and have the opportunity to demonstrate their ability to serve as an employee before the employer learns of any criminal history.

Applicability to Small Businesses in Philadelphia

Under the 2011 law, which went into effect in 2012, only employers with ten or more employees were covered. The amendment applies the ordinance to any private employer in the city with one or more employees, meaning virtually all businesses are covered under the amendment.

Impact of the City Ordinance on Employers Outside of Philadelphia

The amended ordinance impacts the hiring practices of any employer who has employees in the City of Philadelphia, not only Philadelphia-based businesses.  The new provisions specifically prohibit employers from including any inquiry into criminal history on an employment application, meaning that multi-state applications may not include the question even with a directive that Philadelphia applicants not answer the question. The amended ordinance also requires employers to remove any question regarding an applicant’s willingness to submit to a background check from all application materials.

Limitations on When a Criminal Background Check May Commence

Employers may now conduct criminal background checks only after making a conditional offer of employment. In addition, employers may only look-back at the past seven years of criminal records, excluding any intervening periods of incarceration.

Restrictions on Rescinding a Conditional Offer of Employment

The amended ordinance further mandates that the conditional offer 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…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.”

Before an employer decides to rescind the offer of employment based on a criminal conviction, he or she must make an individualized assessment considering the following factors:

  • The nature of the offense;
  • The time that has passed since the offense;
  • The particular duties of the job being sought;
  • The applicant’s employment history before and after the offense;
  • Any character or employment references provided by the applicant; and
  • Any evidence of the applicant’s rehabilitation since the conviction.

While these factors are similar to those that the U.S. Equal Employment Opportunity Commission (EEOC) recommends employers consider in making an individualized assessment to minimize their exposure to adverse impact claims, these are legal mandates in the amended ordinance, meaning potentially greater legal risk for employers.

Prospective Employees May Challenge a Rescinded Conditional Offer of Employment

Under the amended ordinance, once an employer makes an individualized assessment and decides to rescind a conditional offer of employment, he or she must notify the applicant in writing of his or her decision and its basis and must provide the applicant with a copy of the criminal history report.

The applicant then has ten (10) business days to offer proof that the background check is inaccurate or provide an explanation for information contained in the report. This requirement is different from the federal Fair Credit Reporting Act (“FCRA”) as it applies regardless of whether the employer obtained the criminal record from a consumer reporting agency or by its own research.

This means that city employers who were not previously covered by the FCRA will now have to give applicants an opportunity to provide evidence of inaccuracies in the report or explanations for information contained in the report.

Private Right of Action for Applicants

Finally, the amended ordinance includes a private right of action for compensatory damages, punitive damages, attorneys’ fees, court costs and, “Such other relief, including injunctive relief, as the court may deem appropriate.” Applicants have 300 days from the alleged adverse action to file a complaint with the Philadelphia Human Rights Commission.  As there is no default statutory damages penalty, the amount of potential liability for even technical violations of the amendment’s requirements that cause no actual damage is not clear.

Voluntary Disclosure by Prospective Employee of Criminal History and Notice by Employer

The amended ordinance does include two fairly minor allowances for employers. If an applicant voluntarily discloses information regarding his or her prior criminal history during the application process, the employer may discuss the issue with the applicant at that time. Additionally, an employer may give notice of its intent to conduct a criminal background check after any conditional offer is made. However, that notice must be “concise, accurate, made in good faith, and shall state that any consideration of the background check will be tailored to the requirements of the job.” Employers must also post notice of the ordinance in its offices and on their website in a “conspicuous location.”

Conclusion

In sum, Philadelphia employers will have to comply with a number of new obligations under the amended ordinance. Employers should not make any inquiry into an applicant’s criminal background during the interview process, including on the application form.

Criminal background checks should not be conducted until after a conditional offer of employment has been made. This background check should not extend back more than seven (7) years, excluding any intervening periods of incarceration. If information learned as a result of the background check will be used to disqualify an applicant, employers should document their individualized assessment of the applicant using the specific factors enumerated in the amended ordinance.

Employers must also be careful to follow the notice provision by notifying the applicant of his or her decision to rescind the conditional offer in writing and allowing the applicant ten (10) business days to respond to the decision.

Other jurisdictions, such as the States of New Jersey and New York, also have some form of “Ban the Box” law.  To discuss the impact of the Philadelphia ordinance or another state or local “Ban the Box” law on your business, please contact Phil Morin at pmorin@fpsflawfirm.com or Nishali Amin Rose at nrose@fpsflawfirm.com.

2011 “Ban the Box” Law

2015 Amendment

Employers were permitted to conduct a criminal background check after the first interview

Employers may only conduct a background check after making a conditional offer of employment

 

Employers must remove any reference to prior criminal history from application materials

 

Employers must remove any question in application materials regarding an applicant’s willingness to submit to a background check

Ordinance only applied to employers with ten (10) or more employees

Ordinance applies to all city employers with one (1) or more employees

Employers could look at an applicant’s entire criminal history

Employers may only look back at the applicant’s criminal record for the past seven (7) years, excluding any intervening periods of incarceration

 

Employers must consider specific guidelines when determining whether to disqualify an applicant on the basis of his or her criminal record

 

Employers must notify the applicant in writing if they are rejected based on their criminal history and provide a copy of any criminal history report; applicants must be given ten (10) business days to provide evidence of any inaccuracies on the report or to provide an explanation

No private right of action;

Administrative penalty of $2,000

Applicants are provided a private right of action and have 300 calendar days to file a complaint with the Philadelphia Commission on Human Relations

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