Philadelphia was one of the first cities to adopt ban the box legislation back in 2012 (Fair Criminal Records Screening Standards) which affected employers with 10 or more employees. The law specifically stated that employers may conduct a criminal background check after the first initial interview, and any time before that would be in violation (this includes the employment application) of the new law. In 2015 amendments were made to the Fair Criminal Records Screening Standards, which changed the law significantly:

  1. No more employer size, therefore if a company employs just one person in the city they must adhere to the law.
  2. Reporting period is now only limited to the last 7 years of convictions.
  3. The background check may only be conducted after a conditional job offer as been placed, no longer after the first interview. Offer may be withdrawn if it’s determined that the results of the background check pose an unacceptable risk in the position applied for.

In following the advice provided by the Equal Employment Opportunity Commission (EEOC) in there Consideration of Arrest and Criminal Conviction Enforcement Guidance, this amendment also provides certain factors when determining suitability for employment:

  • The nature of the offense;
  • The time that has passed since the offense;
  • The applicant’s employment history before and after the offense any period of incarceration;
  • The particular duties of the job being sought;
  • Any character or employment reference provided by the applicant; and
  • Any evidence of the applicant’s rehabilitation since the conviction

Essentially, employers must conduct an individualized assessment with each subject that has reportable criminal activity to determine if the crime(s) have a “relationship to the employment sought”.

Lastly, the new amendment states that a “Rejection Letter” must be sent stating that the subject of the report has 10 business days (as oppose to the 5 business day rule set forth in the Fair Credit Reporting Act) to dispute any inaccurate information.

Employers Choice Screening Legislative Alerts are provided as a free service to clients, friends and subscribers of Employers Choice Screening. The intent is to provide information of value to attorneys, human resource, security, and risk management professionals. The information contained in this e-mail alert is intended to provide useful information on the topics covered, but should not be construed as legal advice or a legal opinion. Your comments are appreciated.

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