Most of us are familiar with “Ban the Box.” In its original form, ban the box laws and ordinances were created to remove the criminal history question, and its attendant Yes/No box, from employment applications. Although criminal history inquiry is permitted later in the selection process, the intent of ban the box is to ensure that applicants for employment are considered based on their knowledge, skills, and abilities rather than being automatically disqualified based on criminal history. Sometimes referred to as “Fair Chance Policies,” ban the box is designed to give applicants for employment exactly that – a fair chance for employment.
Ban the box continues to spread. According to the National Employment Law Project (NELP), over 100 cities or counties and 18 states have adopted ban the box. Although ban the box sometimes applies only to public sector employment, at least 20 city/county/state regulations also apply to private sector employers. As ban the box spreads geographically, it also spreads in scope – one of the most recent examples being ban the box in the City of Philadelphia.
On December 15, 2015, Mayor Michael Nutter signed broad amendments to Philadelphia’s Fair Criminal Record Screening Ordinance. These amendments become effective March 14, 2016 and represent not just a change to when the criminal history inquiry may be asked, but rather a change to an employer’s entire criminal history screening program. Notably, the amendments apply:
- To employers having one or more employees in Philadelphia,
- To contingent workers, such as temporary workers and contractors, as well as vocational training positions, whether paid or unpaid, in addition to traditional employment, and
- To employers using a third-party background screening company or conducting their own criminal record check.
Among the significant requirements for employers under the amended Ordinance:
- Eliminate any automatic rules excluding applicants from consideration based on criminal history.
- Remove the criminal history question from the employment application. (It is not acceptable to include the question and direct Philadelphia applicants not to answer.)
- Remove from employment information any question about an applicant’s willingness to have a criminal record check conducted.
- Delay inquiry into criminal history until a conditional offer of employment has been made.
- Limit consideration of criminal convictions to those occurring within the past seven years, where seven years may be added to the end of actual incarceration.
- Conduct an individualized assessment if the applicant has a criminal record and consider those items specified in the Ordinance.
- Inform the applicant in writing if disqualification is based on criminal history and provide a copy of the criminal history report.
- Allow the applicant ten (10) business days to provide evidence of inaccurate information or explain the criminal history.
- Display certain workplace notices, which are pending from the Philadelphia Commission on Human Rights.
These requirements are in addition to, not in place of, employer requirements under State and Federal FCRA laws.
The Ordinance provides an exception for positions where another ordinance or regulation requires exclusion of an applicant based on certain criminal history, but unless otherwise specified by applicable ordinance or regulation, the inquiry still cannot be made until a contingent offer of employment has been extended.
Philadelphia is not the only city to enact ban the box ordinances that extend well beyond the “box.” San Francisco and New York City have their own equally broad versions.
What’s an employer to do with this increasingly complex background check regulatory scheme? Besides working with legal counsel, ensure their background screening partner has compliance expertise and systems and processes in place to assist employers in meeting legal and regulatory requirements.