On March 31, 2011, Philadelphia City Council passed a "Ban the Box" bill, regulating the ability of employers to conduct criminal background checks in the employment process. Mayor Nutter is expected to sign the bill into law. The legislation is set to take effect 90 days after it becomes law.
The bill (bill number 110111-A), introduced by Philadelphia City Council Member Donna Reed Miller, amends the Philadelphia Code by enacting a new chapter, Chapter 9-3000, entitled "Fair Criminal Record Screening Standards." We previously issued two Alerts on prior versions of the bill, one on March 7, 2011, and one on March 10, 2011.
The new legislation applies to city agencies and private employers employing 10 or more persons within the City of Philadelphia. Under the new legislation:
- Employers would be precluded from inquiring about arrests that did not result in convictions, unless required or permitted by another law; and
- Employers would be precluded from making any inquiry regarding criminal convictions before and during the application process and initial interview process, or from requiring that applicants disclose any such information.
Thus, the new legislation prohibits employers from asking about prior criminal convictions on employment applications, which many employers currently ask as a check box application.
Presumably, once an employer conducts the initial interview of an applicant, the employer is free to conduct a criminal background check, subject to other applicable laws (i.e. Pennsylvania law and the Fair Credit Reporting Act).
The prohibitions contained in the legislation would not apply if the inquiries or adverse actions are specifically authorized by another applicable law. Violation of the law constitute a Class II violation, which carries a fine.
PRACTICAL ADVICE:
- Employers who operate in Philadelphia should review their current employment applications and should remove all questions related to criminal convictions from their employment applications;
- Employers should train their human resource personnel, and any other individuals who may conduct interviews, not to make any inquiries regarding an applicant's criminal conviction or arrest history before or during the first interview.
For questions about conducting criminal background checks during the employment process, please contact Carrie B. Rosen of Cozen O'Connor's Labor and Employment Group at 215.665.6919 or crosen@cozen.com, or any other member of the Labor & Employment group.
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