New Philly Law Limits Use of Criminal-Background Checks

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as “ban-the-box” legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers’ consideration of a candidate’s credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process.