Employers conducting business in Philadelphia will soon face the most restrictive “Ban the Box” law anywhere to date. Signed by Mayor Michael Nutter in December of 2015, and coined by some as “Ban the Box 2.0,” the new legislation will go into effect next Monday, March 14.
When originally signed in 2011, the Philadelphia Fair Criminal Records Screen Standards (FCRSS) was a run-of-the-mill “Ban the Box” ordinance that applied to Philadelphia employers with over 10 employees. Under this ordinance, employers were required to wait until after the first interview to conduct a criminal background check, and there was no limit to how far back they were allowed to search for an applicant’s criminal records. In addition, violating the ordinance could be cause for an administrative fine against the employer, but private legal action was not explicitly mentioned in the ordinance.
Now, as a result of a series of amendments, in just a few days employers may as well throw all of their employment applications and pre-employment notices out the window and start over to be compliant with these new requirements:
1. Any employer with one employee in the City of Philadelphia is covered under FCRSS.
2. Employers will be required to post a FCRSS notice both in the workplace and on the employer website once the poster has been issued by the Philadelphia Commission on Human Relations. (The date of the poster’s availability is unknown as of this writing.)
3. Employers must remove all criminal record questions from employment applications. Also banned will be any statement or question about willingness to participate in a background check before a “conditional offer” is made. In addition, the application cannot state that applicants in Philadelphia need not answer about criminal convictions. If the question appears on an application in Philadelphia, it will be unlawful – period.
4. Only after a “conditional offer of employment” has been extended can a criminal background check be run by in-house personnel or a consumer reporting agency. Employers may rescind the conditional offer only when the conviction record would “reasonably lead an employer to conclude that the applicant would pose an unacceptable risk in the position applied for or failed to meet legal or physical requirements of the job.”
5. Employers may only look at criminal conviction records in the past seven years, unless an incarceration period extended into the past seven years.
6. Employers are prohibited from maintaining a “blanket policy” that makes all criminal convictions cause for automatic rejection from employment. Any such policy that currently exists must be rescinded. Instead, employers are now required to conduct Individualized Assessments, and document their process for doing so.
7. Employers must notify applicants in writing if employment rejection occurs based in whole or in part on a criminal background, regardless of whether the criminal history information was obtained by a Consumer Reporting Agency or by in-house research. This notification must include a report of the findings used in making the decision. Applicants rejected for employment will have 10 business days to explain, dispute or provide/clarify information in favor of employment.
Going one step further, the new FCRSS requires the following questions to be used in conducting the required Individualized Assessment of criminal convictions:
1. What was the nature of the offense?
2. How much time has passed since the offense took place?
3. What was the applicant’s employment history before the offense and since the offense?
4. What are the particular duties the applicant will undertake?
5. Are there character or employment references that have or can provide insight?
6. Is there any evidence of rehabilitation by the applicant since the conviction?
Philadelphia’s new FCRSS aims to increase the employment odds of qualified ex-offenders. However some employers, particularly very small ones with little or no financial breathing room, may find the risk of operating in Philadelphia much greater than they can afford. They will soon face fines of $2,000 for each violation of FCRSS where they faced no such risk previously. Further, they can face the expense of defending themselves private actions, now permitted under the amended law, in addition to Administrative Actions. Many plaintiff attorneys in Philadelphia have already included “Ban the Box Complaint Forms” on their websites in anticipation of the March 14th date.
Any employer conducting business in or hiring employees in Philadelphia should train all Human Resources personnel on the new requirements, and conduct a thorough audit of its interviewing and hiring websites, forms and procedures. For help with these items, contact ASE’s Nicole Sitter at [email protected].
Sources: National Law Review 3/8/16; Employment Law 360 1/6/16
http://www.govdocs.com/philadelphia-ban-the-box-2016-posting-requirement/