Philadelphia companies could face fines, lawsuits if they violate new background check rules

Jacob Bielanski Jan. 14, 2016, 1:12pm


PHILADELPHIA - Under new rules in Philadelphia, employers will need to be avoid asking questions about an applicant’s criminal background or risk facing private lawsuits and city fines.

According to attorney Feyi Obafemi at Cozen O’Connor, the new rule requires that a conditional offer of employment be made before an employer can ask any unsolicited question about criminal history.

Under the previous Fair Criminal Screening Standards, employers could not ask about criminal history in the initial interview, but could bring the topic up in subsequent interviews. The rule changes now require a conditional offer of employment be made before an employer can even ask an employee if they consent to a criminal background check.

“It’s really a big difference,” Obafemi told the Pennsylvania Record. “It’s really more restrictive than the older ordinance.”

One area targeted by the new rules are questions that specifically relate to an employee’s willingness to submit to a background check. Obafemi said it was common practice for employers to include a question like this in their employment applications, and that many employers will now have to revisit those applications.

After a conditional offer is made, the new rules further stipulate how a potential employee can be notified of the background check. Unless the employee has already volunteered information about their criminal background, the employer must still keep background check notification “concise, accurate and made in good faith.”

Rejecting an employee based on the background check requires written notice and even more diligent evaluation. The city rule now asks employers to consider six factors when rejecting an employee based on criminal background, including the length of time since the offense, the nature of the offense, and how those offenses relate to the duties of the job.

“The city is just trying to make sure that companies are not denying people employment for things (the candidate) has done in their past that has nothing to do with the job they’re applying for.” Obafemi said.

“I guess the city just doesn’t want employers to make off-the-cuff judgments about people."

Penalties under the new rule include a $2,000 fine per violation. Enforcement of the fine is moved from the mayor’s office to the Philadelphia Commission on Human Relations.

Obafemi notes, however, that the fine is the least of the penalties, as the new law allows the employee to bring a private suit against an employer, seeking injunctive relief, compensatory damages, punitive damages and attorneys fees.

“Employers have to take note - they really have to pay attention to this new law,” Obafemi said.

Philadelphia joins what Obafemi said is a “viral” trend in enacting so-called “ban the box” rules. According to the National Employment Law Project, 19 states have enacted similar rules within the last five years, including Maryland, New Jersey, New York and Ohio.

The rules are supported and encouraged at the federal level, particularly since 2012 when the Equal Opportunity Employment Commission put out guidance to the states.

“This law doesn’t necessarily prevent employers from making sound decision about an individual’s … eligibility,” Obafemi said. “Employers just have to be sure that they’re making individualize analyses before they make a decision.”

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