The city of Philadelphia has joined a growing number of cities and states in imposing restrictions on employer inquiries into criminal history information. On April 13, 2011, City of Philadelphia Mayor Michael Nutter signed Bill No. 110111-A, which will become effective on July 12, 2011. Philadelphia’s new Fair Criminal Record Screening Standards establishes provisions and requirements for the use of criminal history information by city agencies and private employers with 10 or more employees. The new “ban the box” ordinance complements Pennsylvania’s Criminal History Records Information Act, which restricts employers from refusing to hire an applicant based on their criminal history, unless that history is directly related to suitability for the position in question.
The Philadelphia ordinance goes a step further and specifically prohibits both public and private employers with 10 or more employees within the City of Philadelphia from even asking about an applicant’s criminal history record until after the employer’s first direct contact with the applicant.
According to the Society of Human Resource Management (SHRM), the new ordinance creates three basic restrictions on the use of criminal record histories by employers subject to the act:
- Employers may not inquire of applicants or employees about any arrest or criminal accusation that is not still pending and did not result in a conviction.
- Employers may not require job applicants to disclose any criminal convictions during the application process through the first “interview,” and if employers do not conduct “interviews,” they are prohibited from gathering any information regarding the applicant’s criminal convictions during the hiring process. (The term “interview” is broadly defined to include “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.”)
- Employers may not take any adverse action against an applicant or incumbent employee (e.g., refuse to hire, transfer or promote, or choose to terminate) because of past arrests or criminal accusations that did not result in convictions.
The new ordinance does not entirely prohibit Philadelphia employers from using any criminal record history information, but rather postpones the time frame where such inquiries are appropriate. Employers may continue to conduct background check screening that includes a criminal record history component or inquire about an applicant’s criminal record history, provided that the screening or inquiry takes place after the initial “interview” and does not include information on past arrests or criminal accusations that did not lead to conviction.
In view of the Philadelphia ordinance, employers within the City of Philadelphia are encouraged to review their hiring procedures with legal counsel and take steps to modify job applications requiring applicants to disclose their criminal history. Currently, employers found in violation are subject to a $2,000 fine for each violation.