PHILADELPHIA – A new
regulation that has been put into effect in Philadelphia requires employers to
provide an offer of employment before digging into a candidate’s criminal
Under this “ban the box”
regulation, employers will have to wait to perform a background check on potential
employees until after they have provided an offer of employment. No longer can
employers ask that potential employees submit to a background check during the application
process, and when they employers perform the background check, they must do so in “good
While the law has been
passed in Philadelphia, it is not statewide, and leaves the city open to
challenges by the state. The State of Pennsylvania may consider fighting the
"ban the box" regulation if it sees that is creating an undue burden on businesses.
“In many states,
including Pennsylvania, local governments have passed 'ban the box' ordinances in
the absence of a controlling, statewide policy,” Alexander V. Batoff, associate
at Obermayer Rebmann Maxwell & Hippel LLP, told the Pennsylvania Record. “Theoretically,
the general assembly could decide that Philadelphia’s 'ban the box' ordinance
puts an unnecessary strain on businesses and could damage the city (and by
extension the rest of the commonwealth) economically. The general assembly
could then pass a law and create a controlling policy that pre-empts or blocks Philadelphia from enforcing its ordinance.”
While a challenge by
the state of Pennsylvania is possible, Batoff thinks it is unlikely to happen. “Nearly
half of all states and over 100 cities and counties have passed 'ban the box'
laws modeled after the EEOC federal guidance,” Batoff said. “The near-universal
takeaway is that while the federal guidance sets a floor, state and local governments
may offer heightened protections. Even when there is a statewide ordinance,
city and county governments can almost always build on these ordinances."
According to Batoff, an
exception to this occurred in New Jersey in 2014. “In 2014, Governor (Chris) Christie
signed a 'ban the box' bill into law that stripped local governments of the power
to pass their own 'ban the box' ordinances, with limited exceptions,” said Batoff.
While the "ban the box"
law is relatively new in Philadelphia and could have employers receiving $2,000
fines for each violation that is reported, there haven’t been any businesses
that have come under fire for not adhering to the new rule. But Batoff thinks it’s
too early to tell at this point, and litigation could be on the way.
“We are not aware of
any litigation or challenges to date,” said Batoff. “Keep in mind that before
the strengthened version of Philadelphia’s 'ban the box' ordinance went into
effect in March of this year, employers could only be fined for violating the
law. Now, people who feel they have been discriminated against can file an
administrative complaint with the Philadelphia Commission on Human Relations.
If the commission does not resolve the issue within
one year, the complainant may file a lawsuit in court. It is possible
that by summer 2017, multiple cases will have made it through the
administrative pipeline and be ready for litigation.”