Philadelphia Enacts A "Ban The Box" Ordinance

Philadelphia has joined a growing list of jurisdictions across the country that have enacted "ban the box" legislation that prohibits employers from making inquiries into an applicant's arrest or criminal conviction record at the early stages of the hiring process. (The "box" refers to the section of many employment applications that asks for arrest and conviction information.) The primary rationale of the "ban the box" movement is to increase employment opportunities (and, hopefully, to reduce recidivism) among qualified individuals with criminal records, and to combat the stereotypes that often accompany those who have been convicted of a crime.

"Ban the box" laws have been well-publicized of late, but most employers do not realize that even if they do business in a municipality without a "ban the box" law, the use of arrest and conviction records in hiring decisions can lead to serious liabilities.

Here's what you need to know.

Philadelphia's "ban the box" law goes into effect in July 2011 and applies to Philadelphia employers with ten or more employees (the law excepts certain kinds of businesses required to do background checks). Under the new ordinance, Philadelphia employers are barred from doing two things.

First, Philadelphia employers may not make any inquiries or take any adverse action against an employee or applicant based on a criminal accusation which is not then pending and did not result in a conviction.

Second, Philadelphia employers may not make any inquiry regarding or require any applicant to disclose any criminal convictions during the application process until after the employer has conducted a first interview.

In other words, Philadelphia employers may never ask about prior accusations that did not lead to a conviction, and they may not ask about convictions until after the initial screening (whether in-person or over the phone) is completed - a prohibition designed to preclude the common practice of excluding any applicant with a conviction from even applying for a job.

Thereafter, Philadelphia employers, like all other employers, can perform background checks and ask about criminal convictions, but that is the point at which other, lesser-known laws kick in - even apart from "ban the box" laws, employers do not have the unfettered right to use criminal background information, and many employers are paying the price for stepping over the line.

For example, Pennsylvania, like many other states, has enacted legislation that prohibits Pennsylvania employers from using criminal background information in hiring decisions unless the information directly relates to the applicant's suitability for the position (for example, a history of DUI convictions could be used when considering an applicant for a truck driver position). And if a Pennsylvania employer does use the criminal background information in the hiring decision, it must disclose that fact to the applicant (for the obvious purpose of allowing the applicant to challenge the employer's actions).

Federal legislation, like the Fair Credit Reporting Act, can also come into play. And, very significantly, the EEOC has stressed, especially in the last year, that wholesale disqualification of applicants with criminal records could lead to discrimination lawsuits because of the adverse impact this sort of decision-making process can have on certain minorities.

Here's the take away:

• If you are a Philadelphia employer, you'll need to take a close look at your application forms and procedures, and you'll need to make sure all personnel involved in the hiring process are aware of and know how to comply with the "ban the box" law;
• No matter where you do business, you'll need to determine whether your hiring practices conform with the laws regarding the collection and use of criminal background information. Reformulating policies and procedures, and proper training of employees involved in the hiring process, will be crucial.

Let us know if we can help.