Philadelphia Is Latest Jurisdiction to "Ban the Box" in Hiring Processes

Philadelphia's "Ban the Box" Ordinance is the latest indication of a spreading movement to limit criminal background checks as part of employers' hiring processes. Under the Ordinance, which will take effect on July 12, 2011, employers with 10 or more employees in Philadelphia generally are prohibited from inquiring into an applicant's criminal background from the time when an applicant submits his or her application through the initial interview.

Specifically, employers are banned from including in employment applications a box that asks job seekers to disclose their criminal histories. If there is no interview in the hiring process, the employer is prohibited from inquiring into criminal history altogether. In addition, the Ordinance prohibits employers from inquiring about, or taking any adverse action based on, any arrest or criminal accusation that did not result in a conviction. Each violation constitutes an offense and is punishable by a fine.

Philadelphia becomes the latest jurisdiction to enact a "ban the box" law. In 2010, Hawaii and Massachusetts prohibited public and private sector employers from inquiring into criminal history during the initial application phase. New Mexico, California, Minnesota, and Connecticut have applied such prohibitions to the public sector only. "Ban the box" legislation is pending in several other states, and a number of cities, including Atlanta, Boston, Chicago, Seattle, and Baltimore, have enacted some variety of the law.

The Philadelphia Ordinance includes a number of exceptions. The prohibitions do "not apply if the inquiries or adverse actions . . . are specifically authorized by any other applicable law." Nor do they apply to criminal justice agencies such as the police department, criminal courts, or prisons. In addition, if an applicant voluntarily discloses information regarding any criminal convictions at the interview, the employer may discuss with the applicant the convictions disclosed.

Employers with 10 or more employees in Philadelphia should review their employment application and hiring practices, making sure to either remove any inquiries into criminal history from the application used in Philadelphia or to initially proceed without a written application. Covered employers must wait until after the initial interview to make such written or verbal inquiries.

Employers should also be aware of other applicable laws, as well as guidance from the Equal Employment Opportunity Commission and similar state agencies, which have taken the position that blanket prohibitions against hiring individuals with convictions can have a disparate impact on certain minority groups and therefore violate antidiscrimination statutes. Under Pennsylvania law, for example, an employer may only consider an applicant's felony or misdemeanor convictions if they relate to the applicant's suitability for the position in question, and the employer must provide written notice to the applicant of any decision not to hire based at least in part on criminal record.