Employers, Handle With Care: Philadelphia Gives Added Protections to Job Applicants with Criminal Histories
On December 15, 2015, Mayor Michael Nutter signed off on several amendments to Philadelphia’s 2012 Fair Criminal Records Screening Standards Ordinance. The 2012 Ordinance was enacted to prevent discrimination against job applicants with criminal records, as it barred Philadelphia employers from making inquiries into applicants’ criminal histories during the application process. At the time that the 2012 Ordinance was signed into law, it was estimated that 20% of Philadelphians had a criminal record.
Several cities (e.g. Pittsburgh and New York City) and states (e.g. Illinois and Massachusetts) have enacted “Ban the Box” legislation in recent years, and HRLegalist recently detailed New Jersey’s ban on criminal history inquiries during the hiring process.
The amendments to Philadelphia’s 2012 Ordinance go into effect on March 14, 2016, and they provide significantly more protection to job applicants. As of March 14, 2016, employers will be prohibited from making any inquiry into an applicant’s criminal history until a conditional offer of employment has been extended. In addition, the new amendments prevent employers from considering convictions that are more than seven years old.
Employers will also be barred from automatically excluding applicants that have a criminal conviction. Rather, employers may only reject an applicant if the conviction “bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to… the business…coworkers or customers, and that exclusion…is compelled by business necessity.” In determining whether an applicant’s criminal record serves as a legitimate basis from withdrawing a conditional offer of employment, the employer must conduct an individualized assessment that considers:
- 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; and
- Any evidence of the applicant’s rehabilitation since the conviction.
There are also new notice requirements. If an employer rejects an applicant based in whole or in part on his/her criminal record, the employer shall notify the applicant in writing detailing its decision, and, further, shall provide the applicant with a copy of his or her criminal history report. The employer must allow the applicant 10 business days to provide evidence that the information is inaccurate, or, in the alternative, to provide an explanation.
The available remedies for noncompliance are severe. If an applicant is able to prove a violation, he or she may be entitled to injunctive/equitable relief, compensatory damages, punitive damages (up to $2,000 per violation) and attorneys’ fees.
The Fair Criminal Records Screening Standards Ordinance and its amendments may be accessed via the Philadelphia City Council’s website.
As always, HRLegalist urges our readers to consult legal counsel if you have any questions about Ban the Box laws in Philadelphia, or any other jurisdiction.