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May 2011

"Ban the Box": Public and Private Employers in Philadelphia Prohibited from Inquiring into Criminal Background Prior to Candidate Interview

New legislation enacted in Philadelphia will require Philadelphia businesses to revamp the way they examine potential new employees. On April 13, 2011, Philadelphia Mayor Michael Nutter signed into law a bill passed by the Philadelphia City Council which restricts all City employers, both public and private, from inquiring into applicants' criminal backgrounds. The law affects all employers with more than ten employees in the City of Philadelphia.

Councilwoman Donna Reed Miller, who introduced the bill, said the aim of the law is to give ex-offenders an opportunity to interview with prospective employers and make an impression. It prohibits "blanket discrimination" of ex-offenders who may be immediately rejected for disclosing a criminal history on a job application. The "ban the box" moniker attached to the new law refers to the prevalence of applications containing a check box concerning whether an applicant has any prior convictions or charges.

The law, scheduled to go into effect on July 12th, prohibits employers from asking job candidates about arrests that did not end in convictions or to inquire into an applicant's criminal history prior to or during a first interview. Thus, a candidate in the initial stages of the application process, particularly on the application itself, cannot be required to disclose his or her criminal history. If an employer does not conduct an interview, the employer is barred from inquiring into or gathering information concerning the applicant's criminal history. It should be noted, however, that if an applicant voluntarily discloses information relating to his or her criminal convictions, the employer is permitted to discuss the criminal conviction with the applicant. In addition, certain employers requiring background checks, including child care centers and criminal justice employers, are exempt from the law.

Any violation of the law constitutes an unlawful discriminatory practice, and a person who violates the law is subject to a fine under ยง1-109(3) of the Criminal Code.

This is a significant change for employers in Philadelphia and has a potentially far-reaching impact on employers in other cities as well. Any business employing more than ten employees in the City of Philadelphia, even if it is a branch office, is subject to the requirements of the law. Thus, employers should immediately review their employment applications, questionnaires and interview guidelines to determine compliance with the new law.

The law is set forth in Bill No. 110111-A.

Employment Law

Elizabeth F. Lorell

Employment Law