Philadelphia Enacts Major Changes to its "Ban The Box" Ordinance
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
On December 15, 2015, Mayor Nutter signed sweeping amendments that effectively rewrite Philadelphia’s “ban the box” law – the law that regulates the right of an employer to conduct, and base hiring decisions on, a criminal background check. Here are the fundamentals of what you need to know:
- The original law applied to employers with at least ten workers in Philadelphia. The new law applies to employers with just one or more employees;
- In the original law, employers could conduct criminal background checks after the first interview. The amendments provide that employers may only conduct a criminal background check after a conditional offer of employment;
- In the original law, there was no limit on how far back an employer could look when reviewing an employee’s criminal record. Under the new law, only the last seven years can be reviewed (plus periods of incarceration);
- The new law requires employers to remove from their application forms and materials any criminal background inquiries, and prohibits employers from asking if an applicant is willing to submit to a background check;
- The new law requires that employers establish a process for the individual assessment of each applicant (as opposed to mainly relying on the results of a background check). Employer will be required to consider such factors as the nature of the offense, the time that has passed since the offense, the applicant’s employment history before and after any offense, the duties of the job, the applicant’s references, and evidence of the applicant’s rehabilitation;
- Employers will be required to revise posted workplace notices to include notice of the new Ordinance once a poster is issued by the Philadelphia Commission on Human Relations;
- The new law includes this notification requirement: “If an employer rejects an applicant for a job opening based in whole or in part on criminal record information, the employer shall notify the applicant in writing of such decision and its basis, and shall provide the applicant with a copy of the criminal history report. The employer shall allow the applicant ten (10) business days to provide evidence of the inaccuracy of the information or to provide an explanation.”
The new law also includes some teeth: employers who violate the law may be subject to damages, attorneys, and even punitive damages.
Note also that (like the former law), Philadelphia’s “ban the box” requirements apply not only to applicants for employment, but also workers provided through a temp or similar agency, a vocational or similar program, and outside contractors.
The amendments take effect on March 14, 2016.
*This MEA Member Alert is provided for general informational purposes only and does not constitute legal advice.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at email@example.com. See www.powelltrachtman.com for more information.