Employers Beware: Philadelphia’s Recently Amended “Ban The Box” Law Imposes Stringent Restrictions On The Use Of Criminal Background Checks
Philadelphia recently amended its “Ban the Box” ordinance, officially known as the “Fair Criminal Record Screening Standards”, to prohibit all private employers and city agencies from conducting a criminal background check on a prospective employee prior to making a conditional offer of employment.
The Ban the Box law prohibits unlawful employment discrimination on the basis of an applicant’s criminal history. As originally enacted, Philadelphia’s Ban the Box law applied only to employers with at least 10 employees in Philadelphia. Employers were permitted to conduct criminal background checks after the first interview, and could review an applicant’s entire criminal history. While the Ban the Box law did provide for an administrative fine against a violating employer, it did not, as originally enacted, provide for a private cause of action.
Now, as amended, Philadelphia’s Ban the Box law applies to all private employers throughout the city, regardless of size, and to all city agencies. The recent amendments also impose stringent restrictions as to how and when an employer may inquire into a prospective employee’s criminal background. Some of the newly imposed restrictions are as follows:
- An employer may conduct a criminal background check only after a “conditional offer of employment” has been extended to the candidate.
- When conducting a criminal background check, employers may only look back seven years, not including time spent incarcerated.
- “Conditional offer of employment”—Employers are prohibited from withdrawing an offer of employment due to a prospective employee’s criminal record unless the record includes a “conviction for an offense that bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to the operation of the business or to co-workers or customers, and that exclusion of the applicant is compelled by business necessity.” This determination must be made based upon an individualized assessment of the candidate’s record, the particular job being sought, and the risks presented, including: (a) the nature of the offense; (b) the time that has passed since the offense; (c) the applicant’s employment history before and after the offense and any period of incarceration; (d) the particular duties of the job being sought; (e) any character or employment references provided by the applicant; and (f) any evidence of the applicant’s rehabilitation since the conviction.
- The recent amendments also impose specific notice requirements that an employer must follow if a conditional offer of employment is being withdrawn based, in whole or in part, on the applicant’s criminal record. Specifically, the employer must (a) notify the applicant in writing; (b) provide the applicant with a copy of the criminal history report; and (c) allow the applicant ten business days to provide evidence of the inaccuracy of the information or to provide an explanation.
The enforcement arm of the law has also been amended. The Ban the Box law is now administered by the Philadelphia Commission on Human Relations (“PCHR”), which is granted the authority to order several new remedies, including, but not limited to: (a) a cease and desist order; (b) injunctive or other equitable relief; (c) compensatory damages; (d) punitive damages up to $2,000 per violation; and (e) payment of reasonable attorneys’ fees. The new amendments also provide for a private right of action whereby an individual may recover compensatory damages, punitive damages, reasonable attorneys’ fees, court costs, and injunctive relief.
Employers should examine their existing employment applications and their procedures regarding criminal background checks to ensure compliance with the new amendments to Philadelphia’s Ban the Box law. In addition, when a conditional offer of employment is withdrawn, employers should diligently document the applicant’s individualized assessment, noting the factors set forth above, and provide the applicant with a copy in accordance with the new notice requirements.
If you would like to discuss the scope of the new Ban the Box law in further detail, or if you would like us to review your current hiring and/or employment practices, please contact a member of our firm.
October 11, 2017
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