Philadelphia recently became the latest jurisdiction to join what appears to be a nationwide movement to “ban the box” — that is, the box on employment applications that asks job seekers to disclose criminal history. On April 13, 2011, the city’s Mayor, Michael Nutter, signed into law the “Fair Criminal Record Screening Standards” Ordinance, which prevents non-exempt employers from asking job applicants about prior arrests and convictions.

The legislation’s stated purpose is to increase employment opportunities for formerly incarcerated individuals by giving “the individual with a criminal record an opportunity to be judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

Specifically, this ordinance prohibits the City of Philadelphia and private employers with 10 or more employees from: 

• Inquiring about, requiring disclosure of, or taking any adverse action based on an arrest or criminal accusation that is not pending and that did not result in a conviction; and
   
• Inquiring about or requiring disclosure of any criminal conviction during the application process or first interview.

If however an applicant voluntarily discloses a criminal conviction, the employer may discuss the conviction disclosed. Employers that do not conduct interviews are prohibited from asking for or gathering any information about an applicant’s prior criminal history.

The “ban the box” movement has certainly gained momentum as of late, with states and localities across the country recently enacting or considering laws similar to Philadelphia’s ordinance. In 2010, Massachusetts joined Hawaii in prohibiting both public and private employers from inquiring into an applicant’s criminal history during the initial application phase. Other states — New Mexico, California, Minnesota and Connecticut — have enacted similar laws that ban such inquiries in the public sector only. “Ban the box” laws are pending in several other states, and numerous cities, including Atlanta, Boston, Chicago, Seattle, Baltimore and now Philadelphia, have enacted such legislation.

The Philadelphia ordinance provides, however, that its prohibitions “shall not apply if the inquiries or adverse actions prohibited herein are specifically authorized by any other applicable law.” Employers such as banking institutions or companies providing child care services should therefore determine whether some other applicable law authorizes and/or requires them to ask certain job applicants about criminal convictions. Additionally, while the new Philadelphia ordinance prohibits inquiries about criminal history during the application process and first interview, it does not prevent employers from conducting background checks later or asking questions about criminal convictions after the initial interview.

The ordinance further provides that it “should not be construed to require an employer to hire someone with a criminal record.” However, Pennsylvania employers should keep in mind that under the Commonwealth’s Criminal History Record Information Act, an applicant’s felony or misdemeanor conviction can be considered in hiring decisions only if it relates to the applicant’s suitability for the job in question, and the employer must then provide written notice of any decision not to hire an applicant based (even in part) on that person’s criminal record.

Philadelphia’s new ordinance becomes effective on July 13, 2011. Prior to this date, employers subject to the law should revise employment applications to eliminate questions about criminal history. Hiring practices, particularly criminal background check programs, should also be reviewed for compliance. Each violation of the ordinance subjects an employer to a fine of up to $2,000.