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Philadelphia Amends Its Ban the Box Law

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The city of Philadelphia recently passed amendments to its long-standing ban the box law – the Fair Criminal Record Screening Standards (FCRSS). These amendments significantly expand the scope of the law and will go into effect April 1, 2021.

Expands Definition of Employer and Employee

Bill No. 20047901 includes several new definitions including specifying that “employee” includes independent contractors, gig economy workers and rideshare drivers. The bill expands the “private employer” definition to include any third-party person or entity that facilitates the relationship of work for pay between two other parties as full-time or part-time employees or as independent contractors.

Extends FCRSS Requirements to Current Employees

Perhaps the most notable change for employers is the expansion of the FCRSS requirements to current employees. As originally drafted, the FCRSS applied to job applicants so this change will require impacted employers take action to review and revise their employment processes.
 
For example, once the amendments take effect, employers may not inquire into criminal convictions during the employment process (previously the application process). [1] This includes asking the applicant or employee’s willingness to consent to a background check. If an inquiry into conviction history is required under federal or state law, it may be conducted only after a conditional offer of employment is extended.
 
Additionally, employers may only consider criminal convictions for a period of seven (7) years for both applicants and employees. Further, employers must follow the prescribed adverse action process which requires conducting an individualized assessment, notifying the individual of the basis of the decision and waiting ten (10) business days before making a final decision for applicants and employees.

Addresses Pending Charges of Employees

Bill No. 20047901 regulates the ability for employers to inquire into an employee’s pending criminal charges[2] when the employer “possesses reasonably reliable information” that indicates a pending charge relates to the employee’s job duties. Further, employers may require employees to report pending criminal charges provided there is a written policy outlining what offenses are reportable. Importantly, the amendments note that employers may not take adverse action against an employee unless the pending criminal charge bears a relationship to the position’s duties where the continued employment would present an unacceptable risk to the business, coworkers or customers.

Modifies Remedies Afforded to Individuals

Currently the FCRSS includes a private right of action. The amendments change the individual’s ability to recover punitive damages to instead address liquidated damages which equate to the maximum allowable salary for a one month period not to exceed $5,000.

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[1] Under the amendments, employment process is defined to mean the process by which an employer assesses the suitability of an Applicant for prospective employment or consideration of any aspect of the Employee’s re-employment or continued employment, including promotion, raise or termination.
[2] Bill No. 20047901 defines pending criminal charges to mean an existing accusation that a person has committed a crime, lodged through an indictment, information, complaint or other formal charge, where the accusation has not yet resulted in a final judgment, acquittal, conviction, plea, dismissal or withdrawal.