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Philadelphia Expands “Ban the Box” Protections and Further Limits Use of Credit History in Hiring

| Feb 18, 2021 | Discrimination & Harassment |

Job seekers and workers in Philadelphia will soon have fewer worries about whether their criminal or credit histories will stand in the way of potential opportunities. That is due to a series of amendments to Philadelphia’s “Ban The Box” ordinance and other provisions of The Philadelphia Code that further limit the information employers can use when screening candidates and making employment decisions.

If you are looking for work in Philadelphia, here is what you need to know about these changes and how they impact your right to be free from employment discrimination based on unrelated criminal history.

Philadelphia’s “Ban the Box” Protections

Philadelphia passed its “ban the box” ordinance – “Fair Criminal Record Screening Standards” (FCRSS) – in 2015. With certain exceptions, the ordinance prohibits employers from inquiring about convictions on job applications and in initial interviews or making inquiries or any employment decisions based on an arrest that did not result in a conviction.

The law also prohibits employers in the city from considering convictions older than seven years and requires that they conduct individualized assessments before rejecting applicants with criminal records. Each assessment must include consideration of the following factors:

  • The nature of the offense.
  • The amount of time since the offense.
  • The candidate’s employment history before and after the offense and any incarceration.
  • The specific duties of the position.
  • Any character or employment references the applicant provides.
  • Any evidence of the applicant’s rehabilitation since their conviction.

If an employer’s assessment results in declining a candidate based on criminal history, the employer must provide written notice to the applicant, including the reasons behind its decision. Employers must also give the candidate ten business days to give an explanation or evidence of the information’s inaccuracy.

Gig Workers and Current Employees Now Protected

Under the amendments that take effect on April 1, 2021, independent contractors and gig workers now receive the same “ban the box” protections as full-time or part-time employees. The amendment expanded the definition of “employee” to specifically include “any person employed or permitted to work at or for a Private Employer within the geographic boundaries of the City, including as an independent contractor, transportation network company driver, rideshare driver, or other gig economy worker.”

Similarly, the ordinance now contains a broader definition of “private employer” to ensure that the protections apply to independent contractors. “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” must abide by the requirements of the FCRSS.

Before the amendments, the ordinance only protected job applicants. Now, current employees receive the same protections against adverse employment actions based on criminal history.

Changes to “Ban the Box” Remedies

Job seekers who experience employment discrimination due to violations of the city’s “ban the box” ordinance can sue the employer for damages. While the existing ordinance allowed for the recovery of punitive damages in addition to compensatory damages and attorney’s fees, the new ordinance swaps out punitive damages for “liquidated damages, equal to the payment of the maximum allowable salary for the job subject to the complaint for a period of one month,” up to a maximum of $5,000.

Limits on Credit History Use

Since 2016, Philadelphia has prohibited employers from seeking candidates’ credit information or using such information in hiring and employment decisions, except law enforcement and financial institutions. As of March 21, 2021, the automatic exemption for law enforcement agencies and financial institutions will be removed.  At that point, no employer may use credit history information for employment reasons unless one of the ordinance’s other exceptions applies, including if such information “must be obtained pursuant to state or federal law” or if the law requires the employee to be bonded.

Outten & Golden: Protecting the Rights of Workers

While these changes to the law are a positive development, it doesn’t mean that all Philadelphia employers will comply, nor does it guarantee that applicants or employees won’t still face discrimination because of their criminal backgrounds or credit history. When that happens, the discrimination and harassment attorneys at Outten & Golden stand ready to help. If you have questions or concerns about employment discrimination in Philadelphia, please contact us today.

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