Philadelphia Amends Ban the Box Law, Imposes Strict Requirements onto Employers

Posted: December 28, 2015

Ban the box legislation continues to remain one of the hottest topics impacting employers across the country. On December 15, 2015, the Philadelphia City Council expanded its legislation creating one of the strictest laws in the country.

Philadelphia originally passed its ban the box law in 2011 when the concept was rather rare in terms of discussion and legislation. The original law applied to employers with 10 or more employees within the city of Philadelphia. The law was also quite narrow in scope as it simply regulated the timing of the criminal history inquiry and prohibited employers from taking adverse action against individuals based on arrest-only information.

The newly passed legislation amends the “Fair Criminal Records Screening Standards”, and takes effect March 14, 2016. Employers should take note of the following changes under the amended law:

• Application: The new law applies to employers with any employees within the City of Philadelphia.
• Criminal History Inquiry Timing: Employers may not inquire into an individual’s criminal history until after a conditional offer of employment has been extended. The inclusion of a criminal history inquiry on an employment application is “unlawful”.
• Employers may discuss criminal history voluntarily revealed by the individual.
• Employers may also provide notice during the application process that a criminal background check may be conducted provided that the notice states that any consideration of the background check will be tailored to the job’s requirements.
• Individualized Assessment: Employers may not automatically exclude individuals based on criminal conviction history. Before denying an applicant employment based on a criminal record, the employer must conduct an individualized assessment, taking into account:
• The nature of the offense, time passed since the offense, individual’s employment history before and after the offense in addition to any period of incarceration, the particular duties of the job position, character and/or employment references provided by the individual and any evidence of the individual’s rehabilitation.
• Adverse Action: Following the individualized assessment, if an employer chooses to take adverse action, it must notify the individual in writing including the basis for that decision and provide a copy of the criminal history report. The employer must then allow the individual 10 business days to provide evidence of an inaccuracy or a further explanation.
• Reporting Limitation: Employers may only consider an individual’s conviction record for a period of 7 years from the date of the inquiry. Periods of incarceration are not included in the calculation of the 7 year period.
• Posting Requirement: Employers must post a summary of the law’s requirements in a conspicuous place on the employer’s website and premises. (Note: the Commission on Human Relations will provide the required notice. At the time of posting, the Commission’s website has not been updated to address the law’s amendments).
  The amendments also added a private right of action. Under this new provision, if the Commission on Human Relations conducts an investigation into any complaint and concludes there is not sufficient evidence to proceed, an individual may file suit against the employer based on the alleged violation(s) of the Fair Criminal Records Screening Standards.

The amendments also added a private right of action. Under this new provision, if the Commission on Human Relations conducts an investigation into any complaint and concludes there is not sufficient evidence to proceed, an individual may file suit against the employer based on the alleged violation(s) of the Fair Criminal Records Screening Standards.