Philadelphia Toughens Its Ban-the-Box Ordinance

In July 2011, Philadelphia was one of the first cities to enact a ban-the-box ordinance. The ordinance, cited as the Fair Criminal Screening Standards Ordinance, was simple. It applied to employers with at least 10 employees in Philadelphia, and prohibited employers from making inquiries about, or from requiring disclosure of criminal convictions, before and during the first interview. However, with the passage of Bill #150815, Philadelphia’s Code Chapter 9-3500 is amended effective March 14, 2016, and becomes a much broader and more restrictive beyond-the-box ordinance.

Key provisions of the amended code are:

1. Applicability:

• The ordinance is applicable to all employers, public and private, with one or more employees.
• “Employment” is defined as any occupation, vocation, job, work for pay or employment, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary or other employment agency; or any form of vocational or education training with or without pay. It does not include membership in any law enforcement agency, or domestic services in or about the private home in which the employer resides.

2. Inquiries:

• Employers are prohibited from making any inquiry about or require any individual to disclose or reveal any criminal convictions during the application process. The application process begins when an applicant inquires about employment, and ends when the employer has made a conditional offer of employment to the applicant.
• An inquiry about criminal convictions on the employment application is also prohibited, whether or not certain applicants are told they do not need to answer the question.
• Employers are prohibited from inquiring about whether an applicant is willing to submit to a background check.
• Employers may give notice to an applicant or during the application process of its intent to conduct a criminal background check after a conditional offer of employment is made. The notice must be concise, accurate, made in good faith, and state that any consideration of the background check will be tailored to the requirements of the job.

3. Conditional Offers of Employment:

• Employers may conduct a criminal background check only after a conditional offer of employment has been made.
• “Conditional offer of employment” is defined to mean an offer by an employer to hire an applicant, which may be withdrawn only if the employer subsequently determines that the applicant (i) has a conviction record which, based on an individualized assessment as required by § 9-3504(2), 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.

4. Individualized Assessments:

• Employers are prohibited from maintaining a policy of automatically excluding any applicant with a criminal conviction from a job or class of jobs.
• Employers are prohibited from rejecting an applicant based on a criminal record unless the record includes a conviction for an offense that bears a relationship to the employment so 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 the exclusion of the applicant is compelled by business necessity.
• Employers must make a determination of the risk only after reviewing the applicant’s specific record, the particular job being sought, and conducting an individualized assessment of risk.
• Employers must consider the following factors when conducting an individualized assessment:

1.    The nature of the offense;

2.    The time that has passed since the offense;

3.    The applicant’s employment history before and after the offense and any period of incarceration;

4.    The particular duties of the job being sought;

5.    Any character or employment references provided by the applicant; and

6.    Any evidence of the applicant’s rehabilitation since the conviction.

5. Criminal Records:

• Employers can only examine a criminal record going back seven years, excluding periods of incarceration.

6. Withdrawal of Conditional Offer of Employment:

• Employers must notify the applicant in writing if it rescinds the conditional offer of employment.
• Employers must provide the applicant with a copy of the criminal history report.
• Employers must allow applicants 10 business days following the rejection to provide evidence of an inaccuracy on the report or to provide an explanation. As we read the ordinance, the start of this 10-day period is when the employer notifies the applicant of the decision, meaning that this 10-day period cannot overlap the reasonable period of the time (at least 5 business days) that the Fair Credit Reporting Act requires employers to wait after providing a copy of the report and before making the decision.

7. Enforcement:

• Applicants have 300 calendar days to file a complaint with the Philadelphia Commission on Human Rights.
• The Commission may order remedies as follows:

1.    An order requiring the respondent to cease and desist unlawful practices;

2.    Any injunctive or other equitable relief;

3.    Payment of compensatory damages;

4.    Payment of punitive damages, not to exceed $2,000 per violation; and

5.    Payment of reasonable attorney’s fees.

• A private right of action is also granted for alleged violations under the ordinance.

8. Posting Requirements:

• Employers must post a summary of the Chapter (§ 9-3500) requirements in a form to be supplied by the Commission, in a conspicuous place on the employer’s website and premises where applicants and employees will most likely see the notice and read it.

What This Means to You

• The City of Philadelphia has amended its ban-the-box ordinance making it illegal for employers to (a) inquire about criminal convictions during the application process; (b) access an applicant’s criminal history prior to making a conditional offer of employment; or (c) exclude an applicant from consideration solely because of an applicant’s criminal history unless it is job related and consistent with business necessity.
• Employers must conduct an individualized assessment if criminal history is considered, and provide written notice and a copy of the criminal report to an applicant if a job offer is rescinded.
• Employers must post a summary of the Chapter (§ 9-3500) requirements in a form to be supplied by the Commission, in a conspicuous place on the employer’s website and premises. This form is not yet available on the Commission’s website.
• You should determine whether you have employees in the City of Philadelphia.
• If you do, review your employment application, the timing of your background checks, and how you make employment decisions with your lawyer.

Go here to view Philadelphia Bill #150815: https://phila.legistar.com/LegislationDetail.aspx?ID=2506577&GUID=DA9B300A-625B-4B6C-B5B8-6CFD0A321FBF&Options=ID|Text|&Search=150815