This post was written by Don A. Innamorato and Meghan O. Offer.
On April 13, 2011, Philadelphia Mayor Michael Nutter signed a new city ordinance that bans Philadelphia employers from asking applicants about their convictions during the initial phases of the hiring process and precludes them from ever asking about arrests which failed to result in a conviction. Due to become effective on July 12, 2011, the Fair Criminal Record Screenings Standards Ordinance (“the Ordinance”) applies to all City agencies (other than the courts and law enforcement agencies) and private employers with ten (10) or more employees working within the City of Philadelphia. Similar to the “Ban the Box” legislation passed by several states and other cities such as Atlanta, Baltimore and Chicago, and pending in Pennsylvania cities such as Pittsburgh, the Ordinance aims to prevent applicants with criminal records from being summarily excluded from the hiring process.
The Ordinance completely bars employers from ever asking about or basing hiring decisions on an applicant’s history of arrests that failed to result in a conviction. The Ordinance broadly defines forbidden inquiries as any direct or indirect method of gathering information through any mode of communication. Forbidden methods would include job applications and a recruiter’s written or oral requests for information. Although not specifically addressed in the Ordinance, this broad language will also likely preclude any “Google” or other electronic background checks to investigate an applicant’s arrest history. The Ordinance also prohibits employers from asking about or otherwise investigating an applicant’s conviction history until completion of a “first interview” in person or by phone. Without an interview, the employer would have no right to gather any information regarding the applicant’s record of conviction. During the initial interview, the employer cannot ask about or discuss the applicant’s conviction history unless the applicant volunteers this information. After an initial direct interview, however, an employer is free to investigate the applicant’s conviction history.
The Ordinance specifies that it does not alter the Pennsylvania Criminal History Record Information Act, 18 Pa.C.S. § 9125, that bars employers from denying employment based on a criminal conviction unless:
- the conviction was for a felony or misdemeanor;
- the crime has a sufficient connection to the applicant’s suitability for the position, and
- the applicant is given written notice of the decision not to hire based on the conviction.
Finally, although a Philadelphia employer may seek information about an applicant’s convictions after a first interview, how it obtains that information and any notice to the applicant remain governed by the Federal Fair Credit Reporting Act, 15 USC § 1681, et. seq.
Penalties:
Each violation of the Ordinance is a “Class III” offense under the Philadelphia Code that involves a possible $2,000-per-violation fine.
What Covered Employers Should Do Before July 12, 2011:
Covered Philadelphia employers need to take several steps prior to the July 12, 2011 effective date of this Ordinance:
- Review and remove from current job applications, including any online applications, any questions or inquiries regarding an applicant’s arrest or conviction record;
- Delay any manual or “automatic” criminal background system or procedure (including through third-party vendors) until after a first interview;
- Warn, in writing, every recruiter, employee, or employer agent involved in the hiring process not to ask questions or otherwise seek information (as in emails) about an applicant’s past convictions until after the first interview and provide these individuals with social media training to avoid inadvertent violations of this Ordinance;
- Avoid any inquiry into arrests that failed to result in conviction.
