Amendments Update Philly’s Ban the Box Law

The City of Brotherly Love is home to many historic sites. From the Liberty Bell to those famous stairs from the movie Rocky, the city sure is a staple in the history books. In 2011, Philadelphia made history with progressive hiring laws. That year they joined the list of cities with laws around criminal history inquiries during the hiring process.

The Fair Criminal Record Screening Standards (FCRSS) is Philadelphia’s version of a ban the box law. It places restrictions on the use of criminal history for certain employment purposes. The city passed amendments to the law in 2016, expanding its language.

Even with love for history, the city is open to changes and updates to their laws. This year brings more updates for the FCRSS. On January 20, 2021, Philadelphia Mayor, Jim Kenney, signed three bills into law.  Two of the bills update the city’s law regarding credit history use in employment. The other, Bill 200479, amends the local ban the box law further. The amended law will go into effect on April 1, 2021. Let’s break down key areas the amendments address.

Updated Definitions Expand Impact

In the past, the FCRSS had not defined what it meant to be an employee and had a narrow definition of what it meant to be a private employer. New definitions and expanded definitions for these will increase the number of employers that must follow the FCRSS and the “employees” that are protected by it.

 An “employee” is now defined as any person employed or permitted to work for a private employer within the city. The definition includes independent contractors, transportation network company drivers, rideshare drivers, and other gig economy workers.

A “private employer” was defined as any person, company, corporation, labor group, or association that employs any person within the city.  It included job placement and referral agencies, other employment agencies.  It has now been expanded to include any third-party person or entity that facilitates the relationship of work for pay, as full-time or part-time employees or independent contractors.

New Protections for Current Employees

FCRSS protections had applied only to new job applicants, leaving current employees with no coverage. The new amendments expand the requirements of the FCRSS to current employees, as well.

Pending Criminal Charges

The amendments indicate when inquiries into pending criminal charges can be made and allow adverse action to be taken based on pending criminal charges in certain circumstances.  A pending criminal charge is an existing accusation that a person has committed a crime which has not yet resulted in a final disposition.

If an employer has reasonably reliable information that a pending charge has been lodged against an employee, and can show the pending charge relates to the job duties, they can ask the employee about it. In these situations, the employer can require that the employee respond.  Employers may also require employees to report a pending criminal charge, provided that the employer does so pursuant to a written policy detailing what offenses are reportable.

The employer cannot take adverse action against the employee based on a pending criminal charge unless the offense bears such a relationship to the job duties that the employer can reasonably conclude that continued employment presents an unacceptable risk to the business and people and that exclusion of the employee is compelled by business necessity.

Criminal Inquiries Required by Law

The FCRSS previously prohibited inquiries into any criminal conviction before a conditional offer was made.  The amendments prohibit inquiries into any criminal conviction during the employment process, which is defined as the assessment of an applicant’s suitability for employment, as well as consideration of any aspects of continued employment, such as promotions, raises, or termination decision-making, unless required by federal or state law.  If such and inquiry is required by federal or state law, it can only be made after a conditional offer of employment.

Changes to Possible Penalties

Violations of the FCRSS can result in different penalties, including a lawsuit from the candidate.  Remedies in a lawsuit could include attorneys’ fees, damages for loss of employment, and more.

The FCRSS previously allowed a successful complainant to collect punitive damages.  The amendments to the FCRSS remove punitive damages as a remedy, but now allow liquidated damages, equal to the payment of the maximum allowable salary for the job for a period of one month, with a cap of $5,000.

Even if the FCRSS didn’t apply to you before, the amendments might impact you. Talk with a trusted legal advisor to learn if you’re affected.