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Philly's Ban the Box ordinance gives new protections to job applicants

Philadelphia's Fair Chance Hiring Law (a.k.a. Ban the Box ordinance) was enacted in 2011 and went into effect March 14, 2016. The recent amendments to Philadelphia's Fair Criminal Records Screening Ordinance are intended to give job applicants the benefit of the doubt when going through the employment screening process.

The amendments make it illegal for employers to make any criminal background inquiries during the job application process; this includes the application and in-person interview questions. Employers doing business in Philadelphia with one or more employees (with some exceptions) must provide notice to all potential job applicants in two locations, the company's web site and the physical premises.

Notice at the physical premises must include a poster that is clearly visible to job applicants and employees. The poster must restate the amendment requirements under the Fair Chance Hiring law, which includes criteria for when an employer can run a background check, when a criminal record can be considered, the process for notice of a rejection and the applicant's recourse.

When can employers run a background check?

Potential employers can run a criminal background check on a job applicant and the results can affect whether the applicant is hired for the position. However, a criminal background check cannot be run until after a conditional employment offer has been made. If an applicant does have a criminal record, it may only be considered by the employer under certain conditions, including:

  • If the arrest (or arrests) resulted in a conviction (arrests that did not result in a conviction cannot be taken into account)
  • If the conviction occurred less than 7 years prior to the job application (time of incarceration not included)

If a potential employee has been convicted of a crime, the employer may also consider additional criteria in order to reject an applicant, such as:

  • How much time as passed since the conviction
  • The type or nature of the offense
  • Any connection between the offense and the job
  • The applicant's character references, job history and evidence of rehabilitation
  • If the applicant's criminal record poses an unacceptable risk to other employees or the business

If the employer finds that the job applicant does "pose an unacceptable risk," the employer must send the applicant written notice of the rejection and a copy of the criminal background report findings. When the applicant receives the rejection information he or she will have 10 days to send the employer proof that the background check was incorrect, an explanation of the conviction or proof of rehabilitation.

The new requirements under the Fair Chance Hiring Law offer greater protections to those seeking employment. Employers would be wise to review any workplace applicant screening programs to ensure they are in compliance with Ban the Box requirements. Employers who fail to comply could be subject to penalties including injunction relief, compensatory damages and attorney's fees.

Job seekers and employers with questions about Philadelphia's Fair Chance Hiring Law should speak to an attorney experienced in employment law matters. At The Law Firm of Jacobson & Rooks, LLC, we can explain the new requirements, answer your questions and help you determine any next steps.

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