Philadelphia Ban the Box - January 4th, 2016
On 12/15/15, Philadelphia Mayor Nutter signed Bill 150815 which amended the Fair Criminal Records Screening Standards. The new law makes it an unlawful discriminatory practice for a City agency or private employer to inquire or require any person to disclose or reveal any criminal conviction during the license or employment application process until after a conditional offer of employment has been made. The law specifically prohibits an application that inquires about criminal history even if applicants are directed not to answer it. If an applicant voluntarily discloses information regarding his or her criminal convictions during the application process, the employer may discuss the conviction at that time. The law does not apply if the inquiries or adverse actions are specifically authorized or required by law or regulation.
An employer may give notice to prospective applicants or during the application process of its intent to conduct a criminal background check after a conditional offer has been made. The notice must be concise, accurate, made in good faith, and shall state that any consideration of the background check will be customized to the requirements of the job.
Similar to the EEOC guidance and other jurisdictions, an employer must perform an individualized analysis prior to denying employment based on a criminal conviction. The conviction record must be related to the employment sought and that the applicant would present a risk to the business, co-workers or customers, and is compelled by business necessity. The assessment must include the following factors:
- The nature of the offense;
- The time that has passed since the offense;
- The applicant’s employment history before and after the offense and any period of incarceration;
- The particular duties of the job being sought;
- Any character or employment references provided by the applicant;
- Any evidence of the applicant’s rehabilitation since the conviction.
When considering a criminal record,memployers may only use a conviction that occurred within seven years from the date of inquiry. An employer cannot utilize periods of incarceration when calculating the 7 year period.
If an employer rejects an applicant for a job opening based on criminal record information, the employer shall notify the applicant in writing of such decision and its basis, and shall provide the applicant with a copy of the criminal history report. The employer shall allow the applicant ten (10) business days to provide evidence of the inaccuracy of the information or to provide an explanation.
The law also requires employers to post a summary of these requirements in a form determined by the commission in a conspicuous place on the employer’s website and premises. The law takes effect on March 14, 2016. The full text of the law can be found here.