This week, extensive amendments take effect to Philadelphia’s Fair Criminal Records Screening Standards ordinance, popularly known as “Ban the Box.” The Ban the Box law, enacted in 2012 (see our advisory here), regulates the screening process for employers in Philadelphia, with the goal of eliminating barriers for formerly incarcerated people to finding employment. In light of the recent amendments, employers likely will need to make a variety of changes to their hiring processes and employment policies. The amendments expand the scope of coverage of the ordinance to include all Philadelphia employers, except for employers of domestic services in private homes. Employers who fail to comply with the restructured Ban the Box statute may face newly added penalties, the full impact of which are yet to be seen.
The new amendments prohibit the practice of employers asking about criminal background on employment applications with instructions to Philadelphia employees to not answer those questions. In the application, employers are also not permitted to ask if applicants are willing to submit to a background check. Applicants are shielded from inquiry into criminal background up until the employer has extended a conditional offer of employment to the applicant.
Prospective employers face new requirements when handling information revealing that an applicant has a criminal background. If employers reject applicants in some part based on information of a criminal record, those employers must provide notice and allow the applicant 10 days in which to provide an explanation or to provide evidence that the record was inaccurate. The ordinance mandates that employers cannot reject applicants outright based on a criminal record. Instead, those making hiring decisions must make a specialized assessment, according to strict procedural requirements. Failure to follow the updated Ban the Box statute may result in an enforcement action, which is accompanied by revised remedies.
Aggrieved applicants or employees may now seek redress through the Philadelphia Commission on Human Relations and through the court system. With the 2016 amendments in place, complainants may seek a variety of remedies, including cease and desist orders, injunctive and equitable relief, compensatory damages, attorneys’ fees, court costs and punitive damages. Punitive damages may be meted out “per violation” of the ordinance, and courts are authorized to “grant any relief” deemed appropriate.
The Ban the Box statute does provide certain narrowly defined protections for employers. If an applicant voluntarily reveals information about prior criminal convictions during the application period, the employer may then discuss those convictions with the applicant. Employers may also provide notice, subject to strict formal requirements, to prospective applicants or to applicants during the application process of the company’s intent to perform criminal background checks. Further, the amendments clarify that the ordinance will not apply when laws or regulations specifically authorize or mandate inquiry or adverse action related to a criminal history.
The Ban the Box amendments may require significant changes for Philadelphia employers. Special care is now required when addressing criminal background, and employers may need to reevaluate hiring policies to ensure compliance with the statute and avoid liability.