Effective March 14, 2016, all Philadelphia employers will face significant changes to the “ban the box” rules that have been in place since 2011. Under the new law employers, regardless of size, are prohibited from inquiring about an applicant’s criminal history until after a conditional offer of employment has been made.
Employers may then only consider conviction records that have occurred less than 7 years from the date of the inquiry. Any period of confinement may not be included in the 7 year calculation. Additionally, employers may not reject an applicant based on his or her criminal record unless the employer can conclude, after conducting an individualized assessment, that the record bears a relationship to the position sought and there is a business necessity for exclusion. An individualized assessment must include the following considerations:
- The nature of the offense;
- The time that has passed since the offense;
- The applicant’s employment history before and after the offense and any period of incarceration;
- The particular duties of the job being sought;
- Any character or employment references provided by the applicant; and
- Any evidence of the applicant’s rehabilitation since the conviction.
These prohibitions do not apply if inquiries into criminal history or adverse action taken as a result of criminal history are specifically authorized or mandated by other laws or regulations.
After conducting the assessment, if an employer decides to rescind the conditional offer of employment they must:
- Notify the applicant in writing of the decision and the basis for it;
- Provide the applicant a copy of the criminal history report; and
- Allow the applicant 10 business days to provide evidence that the information is inaccurate or to provide an explanation.
The law also includes a notification component, requiring that employers post a summary of these requirements in a form to be supplied by the Philadelphia Commission on Human Relations (Commission). The notice must be positioned in a conspicuous place both on the employer’s website and premises where applicants and employees will be most likely to notice and read it.
Each violation of the law is considered a “Class III” offense and violators will be subject to fines set forth in the Philadelphia City Code section § 1-109(3). Any aggrieved person may file a complaint with the Commission who then may issue an order directing an employer to take affirmative action to redress the harms suffered by the complainant. The Commission may order remedies, including, but not limited to:
- An order requiring the respondent to cease and desist such unlawful practice;
- Any injunctive or other equitable relief;
- Payment of compensatory damages;
- Payment of punitive damages, not to exceed $2,000 per violation;
- Payment of reasonable attorneys’ fees.
If the Commission, within 1 year of the complaint, determines that there isn’t sufficient evidence to proceed with an investigation, or hasn’t entered into an agreement with the complainant, the Commission must notify the complainant that the case is being dismissed. Upon receipt of that notice, the complainant may exercise a private right of action and file a claim in a “court of competent jurisdiction”. The court may grant the right to recover for each violation:
- Compensatory damages;
- Punitive damages;
- Reasonable attorneys’ fees;
- Court costs; and
- Such other relief, including injunctive relief, as the court may deem appropriate.