On April 13, 2011, Michael A. Nutter (D), the Mayor of Philadelphia, signed into law the Fair Criminal Record Screening Standards Ordinance (Ordinance). This controversial statute, which will prohibit Philadelphia employers from considering criminal conviction records before or during a first interview, goes into effect 90 days after the law's enactment.

In its legislative findings supporting the Ordinance, the City Council observed that approximately 20 percent of Philadelphia’s population has some type of criminal record, and that nearly 3,200 people are released from the Philadelphia prison system annually. The Council also found that persons with criminal records suffer from pervasive discrimination in employment and many other areas of life.

The Ordinance applies to city agencies and private employers which employ 10 or more employees in the city. Not surprisingly, the Ordinance makes it unlawful for a city agency or a private employer to knowingly and intentionally make any inquiry about, or take any adverse action against, a person on the basis of any arrest or criminal accusation which is not then pending and which did not result in a conviction. The law similarly prohibits city agencies and private employers from requiring any person to disclose or reveal any such arrest or criminal accusation. Most federal, state and local fair employment agencies already consider pre-employment inquiries about arrests (as opposed to criminal convictions) to be improper.

The more controversial provision of the Ordinance makes it unlawful for a city agency or private employer to make any inquiry regarding, or to require any person to disclose or reveal, any criminal conviction against said person before and during the “first interview.” An “interview” means “any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant’s qualifications.” If the employer does not conduct an interview, that employer is prohibited from making any inquiries or gathering any information regarding the applicant’s criminal convictions. However, if the applicant voluntarily discloses any information regarding his or her criminal convictions at the interview, the employer may discuss them with the applicant.

Notably, the Ordinance does not ultimately prohibit Philadelphia employers from considering criminal conviction records. Instead, according to the Council, the law “is intended to give 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.”

The prohibitions in the Ordinance do not apply if the impermissible inquiries or adverse actions are specifically authorized by any other applicable law. They also do not apply to so-called “Criminal Justice Agencies” like courts, police departments, detention and correction facilities, district or prosecuting attorneys and parole boards.

Each violation of the Ordinance is considered a “Class III” offense and any person who violates the law is subject to a fine, the current maximum for which is $300 per violation. The law does not create a private right of action for applicants or employees.

If you have any questions about the Ordinance, or criminal background checks in general, please feel free to contact the author or any other member of the Arent Fox Labor & Employment Law Group.

Michael L. Stevens
stevens.michael@arentfox.com
202.857.6382