Mayor Michael Nutter signed an amended version of Philadelphia's Fair Criminal Screening Standards Ordinance, known as the Philadelphia's "Ban the Box" law, yesterday. The ordinance, which took effect in 2012, prohibits questions regarding criminal background on employment applications or the initial interview. The new amendment makes several significant changes in the law. First, it expands coverage of the ordinance to all employers in the City of Philadelphia, both public and private, with one or more employees (except certain criminal justice agencies). It also changes when criminal background checks can be conducted, what can be considered and imposes new guidelines and notice requirements on employers.
Under the amended ordinance, employers may only conduct a criminal background check after a conditional offer of employment has been made. In addition, when conducting the background check, employers can only look back on the last seven years of an applicant's criminal records, excluding any periods of incarceration.
If a criminal conviction is discovered during a background check, employers must consider factors such as the nature of the crime, the time that has passed since the offense and the duties of the job before making a determination of whether to withdraw the offer of employment. If the employer does decide to withdraw the offer, they must notify the applicant in writing and provide a copy of the criminal record. The applicant then has 10 business days to provide evidence of an inaccuracy on the report or provide an explanation.
The amended ordinance will continue to be enforced by the Philadelphia Commission on Human Relations (PCHR) and applicants have 300 calendar days to file a complaint with the PCHR.
The changes in the law will become effective in 90 days.
Comment: This is a significant change in the law and requires employers to review their policies, forms and hiring practices. There are numerous federal, state and local laws that are implicated when background checks are conducted. Employers are encouraged to have a set policy for when and how background checks will be performed and how information learned from background checks will be considered. Employers are also encouraged to re-examine all forms, including applications, authorizations and waivers that are used in the hiring process to ensure that they comply with not only the newly amended Philadelphia ordinance, but with the federal laws and EEOC guidance.
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Chelsea R. Seidel