December 18, 2015
For decades, private employers have used a number of tools to analyze and evaluate candidates for positions, including requiring resumes, work and personal references and the completion of an application. Two tools that have also been used are credit checks and criminal background checks. I wrote an article back in September on the use of credit reports in hiring and the fact that Federal legislation has been introduced to significantly limit the use of credit checks. To date that legislation has not advanced toward becoming law.
But there is a movement afoot to take away an often utilized tool by employers and that is the inquiry of the criminal history of the applicant. Many of you might have recently heard reference to the “ban the box” movement. This is a movement, focused primarily in urban areas, led by groups who believe that inquiries into the criminal background unfairly impact and limit the employment opportunities of minorities.
The “ban the box” movement generally has two objectives – (1) not permitting, or limiting to felony convictions, any questions on the application regarding criminal history; and (2) only permitting the criminal background checks after a conditional offer of employment, and limiting how far back the criminal history can be searched.
Putting aside any opinion as to the validity of the disparate impact argument, the ban the box movement has led to the prior institution (April 2011) and this week’s significant expansion of the ban the box ordinance in the City of Philadelphia.
Ban the Box 2.0
The Amendment to the Fair Criminal Screening Standards Ordinance (FCSSO) has several significant, and highly impactful, mandates and restrictions on employers looking to hire in Philadelphia. Given the breadth of the Amendment, employers in the City should consider this as a new ordinance. The Amendment will take affect on March 14, 2016 (ninety days after Mayor Nutter signed the ordinance).
- First, it applies to ALL employers in the City, public and private. The Amendments apply to all employers with one or more employees – thus all employers. Before the amendment, the employer need to employ 10 workers. In addition, the FCSSO arguably applies to of “employment” relationships, including independent contracting.
- Second, employers can only conduct criminal background checks after a conditional offer of employment. Before the amendment, the employer could conduct the background check after the first interview.
- Third, employers can only look back on the last seven (7) of the applicant’s criminal record, excluding any period of incarceration during that seven years. Before the amendment, the employer could search as far as it wanted to into the applicant’s criminal history.
- Fourth, the employer must review and consider guidelines when deciding whether to not hire an applicant based on criminal history. The employer can no longer consider a conviction as an automatic disqualifier.
- Fifth, the employer must notify the applicant in writing if he/she was not hired because of the criminal background check and a copy of the report must be included. The applicant than has ten (10) business days after the notice to notify the employer of any inaccuracies in the criminal background check or to provide an explanation for any entry on the report.
- Sixth, any applicant that believes the employer did not abide by the Ban the Box Ordinance has 300 days to file a complaint with the Philadelphia Commission on Human Relations.
The Amendment has significant impacts for employers.
First, it applies to hundreds, if not thousands, of additional employers. Simply put, every business in Philadelphia must abide by the Ordinance.
Second, a conditional offer of employment must be made before a criminal history can be run, similar to a drug screening. This may require the creation of new procedures and documentation for employers.
And third, the limitation on the background check – only seven years. Some may see this as a protection for the applicant, but as a lawyer for employers, I see this as significant risk. For instance, if an applicant was convicted of rape, fifteen years ago, and is being hired as a janitor on a college campus in the City, why in the world should not the campus be allowed to know of the applicant’s past conduct/conviction. And, should the college be sued for negligent hiring, will the City defend that employer? How about an individual convicted of check/credit card fraud ten years ago, why shouldn’t an employer that operates a call center that takes credit card information be able to know of that past conviction.
The original ordinance and its amendment may have the best of intentions, but there may be unintended, dangerous consequences. However, until the law in the City of Philadelphia changes, ALL employers need to comply.
For more information, feel free to contact James B. Shrimp via email jshrimp@highswartz.com
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.