Philadelphia’s 2011 “Ban the Box” law, which restricts an employer’s ability to inquire into a job applicant’s criminal history at the initial stages of the application process, is “old news” – but the recent changes that went into effect on March 14, 2016 are anything but. Our firm will be getting into the details of this recent development at its 8th Annual Labor and Employment Seminar (April 27, May 4, and May 12).
In short, every Philadelphia employer needs to make the necessary changes to its job application procedures to comply with the broader requirements of the law that former Mayor Michael Nutter signed into law before leaving office in December 2015.
The 2011 Version
As enacted in 2011, Philadelphia employers with 10 or more employees could not include the “box” on a job application asking about criminal records. Employers were not permitted to ask about criminal records at an initial interview, but could do so after the first interview. And, when asking about a criminal background, employers were prohibited from asking about arrests or anything other than criminal convictions. Violations of the law carried up to a $2,000 penalty.
The 2016 Version
Under the new changes, the law applies to essentially every employer with one or more employees (although there are still exceptions for industries and businesses where the need to make such inquires is necessary to qualify for the job). In a broad expansion of the law’s prohibitions, employers cannot make inquiries about a job applicant’s criminal history until after a conditional offer of employment. There are particular requirements in the law which are intended to control and limit how the employer may consider an applicant’s criminal history. However, the law does not explain clearly how an employer can evaluate an applicant’s criminal history without running afoul of the law.
Under the 2011 version, an agency of the City of Philadelphia could investigate alleged violations of the law and issue penalties. The new law expands employer exposure. It permits aggrieved job applicants to file a civil lawsuit for compensatory damages and attorneys’ fees.
As a consequence, every Philadelphia employer needs to take close look at its hiring procedures and fine tune the process to comply with the law. And, when an a job offer is made to an applicant and a criminal history surfaces, you should consult with your attorneys to navigate the law and determine how to proceed in a lawful manner that is practical for your company.
Again, we encourage you to attend our upcoming Labor and Employment Seminar to learn the details about this recent development – and many other topical developments since last year.
Mark J. Leavy is an Associate in the Firm’s Labor & Employment Group. He focuses his practice in employment litigation at the trial and appellate levels.