Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 14, 2016, Philadelphia’s so-called “ban the box” law, the Philadelphia Fair Criminal Records Screening Ordinance, became effective.1 With it came the release of a mandatory new poster restating the major elements of what is now called “Philadelphia’s Fair Chance Hiring Law.” The Ordinance requires that employers display the new poster “in a conspicuous place on the employer’s website and premises, where applicants and employees will be most likely to notice and read it.”
Poster Re-Statements and Clarifications
The poster reiterates that it is illegal for employers in Philadelphia to ask about an applicant’s criminal background anytime during the application process. Thus, employers must not have any question about criminal convictions on the application (not even with a disclaimer) and may not ask any questions during interviews.
As the poster notes, an employer may conduct a criminal background check only after making a conditional offer of employment. The poster notes, in accordance with existing Pennsylvania law, that arrests that do not lead to a conviction cannot be considered, and only convictions occurring in the last seven years may be considered. The poster expressly confirms that the seven-year period does not include time of incarceration – thus a conviction 13 years ago, with a 7-year prison term, may be considered.2
Individual Assessment of Background Results
The poster restates in different terms the obligation established in the Ordinance to consider a number of factors for each employee whose background check reveals a conviction:
(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 poster then goes on to state:
Employers can reject you based on your criminal record ONLY if you pose an unacceptable risk to the business or to other people.
This is a somewhat deceptive restatement of the Ordinance provision, which provides:
A prospective employer shall not reject an applicant based on his or her criminal record, unless such record includes 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. An employer shall make a determination regarding such risk only after reviewing the applicant’s specific record and the particular job being sought, and conducting an individualized assessment of the risk presented.
Although there is no legislative history for this provision given the Ordinance’s quick introduction and passage, it appears to derive from the U.S. Court of Appeals for the Third Circuit’s 2007 decision in El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007). Applying U.S. Supreme Court precedent, the El court observed that some level of risk is inevitable in all hiring, and that, "[i]n a broad sense, hiring policies . . . ultimately concern the management of risk.” Recognizing that assessing such risk is at the heart of criminal record exclusions, the Third Circuit concluded that Title VII disparate impact analysis requires employers to justify criminal record exclusions by demonstrating that they "accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.” The court approved excluding a para-transit driver from employment based on a 40-year-old second degree murder conviction.
Under Pennsylvania state law, 18 Pa. C.S. § 9125, employers are already required to assess whether convictions “relate to the applicant's suitability for employment in the position for which he has applied” before using them to take adverse action.
Accordingly, employers must simply come to a “reasonable” decision that the person poses an “unacceptable” [to the employer] risk to the business and customers.
In the final section, the poster notes that if a conditional offer is rejected, the employer must send a written notice with a copy of the background check relied upon. Although it was unclear from the Ordinance, the poster makes clear that this notice is an “adverse action” notice required after rejection of the employee.3
Employees then have 10 days to provide an explanation, proof that the background check is wrong, or “proof” of rehabilitation. As “proof” of rehabilitation was not mentioned in the Ordinance itself, there is no clear basis or standard upon which an employer must consider this information.
As previously discussed, the “amendments” to Philadelphia’s Fair Criminal Records Screening Ordinance are more accurately described as a complete rewriting of the Ordinance and create a substantial risk of civil liability for employers who have criminal records screening programs, even those who have recently had a compliance review under the FCRA. Although the new poster clarifies some ambiguities in the Ordinance, some issues remain for clarification and interpretation. Now that it is fully effective, if they have not already done so, employers should carefully review their screening programs.
1 See William J. Simmons and Thomas Benjamin (Ben) Huggett, Beyond “Ban the Box” – Philadelphia Makes Sweeping Changes to Criminal Records Screening Ordinance, Littler Insight (Dec. 16, 2015).
2 This was previously believed to be the meaning of the Ordinance but it was not entirely clear.
3 Arguably, such additional adverse action notice requirements, i.e., steps employers must take only after a decision has become final, are preempted by the FCRA. 15 U.S.C. § 1681t(b)(1)(C); see, e.g., a recent decision by a Massachusetts district court finding that the FCRA preempts any Massachusetts state law purporting to impose adverse action requirements. Employers should exercise caution in applying these provisions until this issue is resolved by the courts or regulators.