At the end of last year on December 15th , Philadelphia’s Mayor Nutter signed into law an amendment to the city’s Fair Criminal Screening Standards Ordinance. The amendment, which goes into effect on March 14, 2016, limits an employers’ ability to inquire about the criminal history of a potential employee and provides prospective job applicants with criminal records considerable protection.
Beginning next March 2016, employers will no longer be able to inquire into an applicant’s prior criminal history until a conditional job offer has been made to the prospective employee. Employers are precluded from categorically denying an applicant an offer of employment based upon a criminal conviction without first making an individualized assessment that analyzes whether the criminal record serves as a legitimate basis for withdrawing the conditional employment offer. The employer should consider the following 6 factors when making this individualized assessment:
- The nature of the offense.
- The time that has passed since the offense.
- The applicant’s employment history before and after the offense and any period of incarceration.
- The particular duties of the job.
- Any character or employment references provided by the applicant.
- Any evidence of the applicant’s rehabilitation since the conviction.
If the employer elects to withdraw the conditional offer, the employer must reasonably conclude that after applying the above 6 factors that the applicant presents 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. In any event, the amended Ordinance prevents employers from considering convictions more than seven years prior to the date of the inquiry, excluding any periods of incarceration. If another law or regulation requires employers to ask certain applicants about criminal convictions, a separate application should be developed strictly tailored for such applicants.
Notification to Applicant. If the employer rejects a potential applicant based upon his or her criminal record, the employer is now required to notify the applicant in writing and prove the applicant with a copy of the criminal report. The applicant then has a ten (10) day period to provide evidence if the report is not accurate or provide additional information to the employer to consider.
Employers must change application process. There are other important compliance aspects to the new ordnance such as posting requirements, private rights of action after exhaustion of administrative remedies and the like but they are beyond the scope of this entry. Going forward however, employers must take immediate steps to remove any reference to a criminal record or willingness to submit to background checks from their initial application until such time that their application can be revised to insure compliance with the amended ordinance. In addition, employers should make sure that all individuals associated with the hiring process are familiar with the new amendment and its impact upon applicants and criminal inquiries in general.
For Employers with a New Jersey location. Please click here for an entry I wrote last year about New Jersey’s “Ban the Box” law.
This entry is presented for informational purposes only and is not intended to constitute legal advice.