Philadelphia Joins a Growing National Trend by Passing a "Ban the Box" Law for Employment Applications

"Ban the Box" is a phrase meant for employers, meaning - "Remove any questions about criminal history from initial job applications." 

Several cities and states have already passed "ban the box" laws[1] but most pertain to applications for city, county, or state government jobs.  "Philadelphia's new Fair Criminal Record Screening Standards" ordinance will pertain to private employers as well.  Taking effect on July 12, 2011, private and public employers within the City of Philadelphia who have ten or more employees cannot require job applicants to disclose their criminal history on the initial employment application or in an initial interview.  Employers in Philadelphia should plan to revise their employment applications accordingly. After the application has been accepted and the employer has conducted the first phone or in-person interview, then an employer may inquire into or gather information regarding criminal convictions.  The Philadelphia ordinance also prohibits inquiries into arrests that did not lead to a conviction and that are no longer pending.

Equal Employment Opportunity Commission (EEOC) regulations have been in existence for decades warning and educating employers about the potential discriminatory use of criminal records.  Specifically, employers should not summarily disqualify applicants who have a criminal record; consideration should be given the certain factors in each case -- the age of the offense, the degree of severity, and the job-relatedness of the offense.  The "Ban the Box" laws coming out of local and state governments are based on the premise that even asking applicants about their criminal records on the initial application is an unlawful discriminatory act.

What is causing the "Ban the Box" trend? 

The vast majority of employers nowadays conduct pre-employment criminal history checks. There is no shortage of activist groups who believe that pre-employment credit and criminal reports are being over used.  The assertion is that many employers, time pressed to distinguish between numerous applications, may too easily disregard applicants with a criminal record, regardless of existing EEOC regulations.  As a result, ex-offenders do not get a fair opportunity to re-join the work force.  By initially prohibiting the criminal history question from the employment application, possibly more qualified candidates, who happen to have some type of past criminal record, will make it through the doors for consideration.

Grass roots activist groups are not the only ones behind the trend. 

In 2008 the federal EEOC introduced the E-RACE Initiative (Eradicating Racism and Colorism from Employment).  One of the E-RACE action items is to "Develop Strategies for Addressing 21^st Century Manifestations of Discrimination."  More specifically, by 2013, the EEOC wants to "implement investigative and litigation strategies to address selection criteria methods that may foster discrimination...such as credit and background checks, arrest and conviction records..."  Clearly this is an outline for a systemic, aggressive, and litigious action plan. 

There are still many questions surrounding the application and administration of new and proposed "ban the box" laws and ordinances.  ESS will continue to provide e-Updates regarding these and other issues; however, all employers would be well served to review their policies regarding the use of criminal records in the decision making process. Employers with questions regarding their particular employment practices should consult with counsel.

1

Hawaii state law prohibits employers from asking applicants about criminal convictions until after a conditional job offer has been made. (Haw. Rev. Stat. § 378-2.5). Exceptions exist for certain government related security sensitive positions.

Massachusetts enacted a "ban the box" law that became effective November 10, 2010, that prohibits employers from asking applicants about their "criminal offender record information" or CORI on initial applications.  The law pertains to access to the state's newly created Department of Criminal Justice Information Services, and it does not address criminal history inquiries conducted by third parties on the behalf of employers. Until these ambiguities in the CORI reform law are resolved, employers are advised to exercise caution in asking job applicants about any felony or misdemeanor convictions during the application process.

Various cities and counties in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, and Washington have also passed "ban the box" laws but they only pertain to public employers