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Philadelphia Employers Must Modify Standard Employment Application under Criminal Record Law

  • May 10, 2011

Effective June 17, 2011, Philadelphia’s new Fair Criminal Record Screening Standards Ordinance generally will prohibit Philadelphia employers from asking job applicants questions related to criminal history prior to or during the first interview.  Similar to restrictions applicable to Massachusetts and Hawaii employers, the “ban the box” law will prohibit Philadelphia employers from obtaining criminal background information on an initial employment application.  The Ordinance applies to employers that employ 10 or more persons within the City of Philadelphia.

Philadelphia employers retain the right to make inquiries regarding criminal background following a first interview and utilize such information in hiring decisions.  “Interview” is defined as “any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant's qualifications.”  If any information is voluntarily disclosed during the first interview, however, the employer may ask questions regarding the applicant’s conviction history. 

With limited exceptions, the Ordinance also makes it an unlawful discriminatory practice for a covered employer to inquire about or take any adverse action against an applicant on the basis of an arrest or criminal accusation made against the applicant that is not then pending against him or her and did not result in a conviction. 

The Ordinance does not supersede state law permitting employers in certain industries, including, but not limited to, child care, banking, education, and law enforcement, to inquire into applicants’ criminal histories and utilize criminal background information.

Violations of the Ordinance are subject to fines of $2,000 per violation.

Existing Pennsylvania State Law Unaffected

While the procedural limitations on obtaining criminal background information are new, the protections in the enactment are consistent with current Pennsylvania law.  State law prohibits employers from taking adverse actions against applicants on the basis of criminal conviction, unless there is a close nexus between the nature of the crime and the specific job sought.  Should an applicant be denied a position for such reasons, state law requires employers to provide the applicant written notification that past criminal conviction was the reason for the denial. 

Proliferation of “Ban the Box” Laws

States, including Massachusetts, Connecticut, Hawaii, California, New Mexico, and Minnesota, and municipalities have enacted similar procedural restrictions in the public sector.  Similar legislation also either is pending or has been debated in Nebraska, New Jersey and Rhode Island.  Philadelphia joins Hawaii and Massachusetts as the only jurisdictions with “ban the box” laws covering both private and public employees.

Advocates of the “ban the box” restriction say lower recidivism rates and removal of obstacles to acquiring employment by enabling applicants to promote their job-related skills and strengths prior to disclosing their criminal records credit are benefits from the law.

Implications for Employers

Philadelphia employers not only must modify their employment applications, but also train their managers, recruiters, and any other persons involved in the hiring process not to directly inquire about an applicant’s criminal history during the first interview.

Jackson Lewis attorneys are available to assist employers in handling issues pertaining to employer hiring practices and related litigation.

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