ManagementAlert

Employers in Philadelphia will soon need to revise the criminal history questions on their employment applications based

on a recent law. On April 13, 2011, City of Philadelphia Mayor Michael Nutter signed Bill No. 110111-A, which was passed

by the Philadelphia City Council on March 31, 2011. The law will become effective 90 days after its enactment, or July 12,

2011. Philadelphia’s new “Fair Criminal Record Screening Standards” establishes provisions and requirements for the use

of criminal history information by certain employers within the City of Philadelphia. Among other things, the new law prohibits

employers from engaging in “unlawful discriminatory practices” such as including criminal history questions on employment

applications and from making adverse employment decisions based on arrests that did not result in convictions.

The New Ordinance Impacts A Majority Of Employers With Philadelphia-Based Employees

The new ordinance specifically prohibits both public and private employers with 10 or more employees within the City of

Philadelphia from requiring applicants to disclose their criminal history until after the employer accepts the employment

application and conducts the first telephone or in-person employment interview. In other words, the new law “bans the box”

on employment applications used to identify whether an applicant has any criminal convictions, under the ordinance, use

of the “box” would be an “unlawful discriminatory practice.” Further, an employer that does not conduct an initial telephone

or in-person employment interview is barred from making any inquiries or gathering any information about the applicant’s

criminal convictions. If the applicant voluntarily discloses any information about his or her criminal convictions at the first

employment interview, however, then the employer may discuss the criminal convictions disclosed by the applicant. The

ordinance also bars employers from inquiring about or taking adverse action against an applicant on the basis of an arrest

or criminal accusation that is not pending and that did not result in a conviction. Under the ordinance, this would also be an

“unlawful discriminatory practice.”

The new Philadelphia ordinance does not prohibit employers from using criminal history information after the first telephone

or in-person employment interview so long as they do not inquire about arrests or criminal accusations that are not pending

or that did not result in convictions. The ordinance also does not apply to “Criminal Justice Agencies,” as that term is defined

in the ordinance. Neither does the ordinance supersede inquiries or adverse employment actions specifically authorized by

any other applicable law.

• April26,2011

Philadelphia Passes A New “Ban The Criminal Box” Law That Applies To Private Employers

Management Alert

There Is A Nationwide Trend In “Ban The Box” Legislation

Bill No. 110111-A is the newest piece of legislation resulting from the recent trend of states, cities, and counties imposing

further restrictions on employer inquires into criminal history by limiting what can be asked on an employment application.

Most of these laws and ordinances are limited to public employers, however, some impact private employers as well. On the

statewide level, California, Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico have all enacted some form of

“ban the box” laws. Massachusetts and Hawaii, however, are the only states that have “ban the box” laws covering private

employers. Massachusetts’ law was discussed in detail in our August 10, 2010 Management Alert (click here to read). In

Hawaii, public and private employers have long been prohibited from inquiring about an applicant’s criminal history until after

a conditional offer of employment is made.

At a more local level, 26 cities and counties in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan,

Minnesota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, and Washington have also enacted “ban the box”

laws. Similar to the statewide laws, these local laws typically only apply to public employers. Philadelphia is the first major

city to pass an ordinance that expressly covers private employers. Some of the local laws in Connecticut and Massachusetts,

however, also impact private employers. For example, the City of Hartford passed a “ban the box” law that applies to both

the City of Hartford and its vendors. Hartford’s “ban the box” law also prohibits background checks until after a conditional

offer of employment is made. Similar “ban the box” laws applying to both cities and their vendors were also enacted in the

Massachusetts cities of Worcester, Boston, and Cambridge. The inclusion of “vendors” in Boston’s “ban the box” law is

particularly significant because it impacts more than 50,000 private employers.

The “ban the box” trend continues as additional state laws and city ordinances are being introduced throughout the nation,

including, but not limited to, Indiana and Washington D.C. as well as Los Angeles, Newark, Durham, and Ann Arbor. For

example:

• Senate Bill 391 is currently pending in Indiana. If enacted, the statewide law provides that an employer may not inquire

whether an employee or potential employee has been: (1) arrested or charged with a misdemeanor or felony that did

not lead to a conviction; (2) convicted of or pleaded guilty to a misdemeanor if five years have passed since the date

the person completes the person’s sentence and satisfies any other obligations imposed on the person as a part of the

sentence; or (3) adjudicated a delinquent for an act that would have been a crime if committed by an adult. Senate Bill

391 is currently in committee.

• In December 2010, the Counsel for the District of Columbia voted to “ban the box” inquiring about criminal history

information on applications for D.C. government jobs. As follow-up legislation, B19-0017, otherwise known as The

Human Rights for Ex-Offenders Amendment Act of 2011, was introduced and is currently pending in Washington D.C.

If enacted, the local law would require employers to hold off on criminal background checks until after a final offer

of employment is made. Even then, employers can revoke final offers only if the criminal convictions revealed in the

background checks are relevant to the job. B19-0017 is currently in committee and there is discussion about expanding

the law to cover D.C. vendors and/or private employers.

Management Alert

Attorney Advertising. This Management Alert is a periodical publication of Seyfarth Shaw LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.) © 2011 Seyfarth Shaw LLP. All rights reserved.

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Employers Should Respond To These New Laws And Ordinances Because of the new Philadelphia ordinance and other pending state and city legislation, employers should be re-evaluating

their pre-employment and hiring practices. Specifically, employers impacted by “ban the box” laws should review their

employment applications to ensure that any questions regarding an applicant’s criminal history are legally compliant.

Impacted employers should also make sure all hiring/recruiting managers are apprised of the new laws through training and

revision of policies. Employers should also be aware of the limitations on requesting and using criminal history information

throughout the hiring process and have discussions with their background screening providers to ensure they know what

information they are getting.

There are still many questions surrounding the application and administration of these new and proposed “ban the box” laws

and ordinances. Employers with questions regarding their particular employment practices should consult with counsel.

For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our

website.