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 background.

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 faith.”

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.”

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