Q. Our company has an office in Philadelphia. Can we ask about an applicant’s criminal and arrest record when recruiting employees to work there?
A. Reflecting the fact that approximately one-fifth of its population has some type of criminal record and that nearly 3,200 people are released from its prison system annually, Philadelphia recently became the latest city in the country to strengthen protections for job applicants with criminal convictions.
Effective July 12, 2011, Philadelphia’s “Fair Criminal Record Screening Standards” is intended to give an individual with a criminal record an opportunity to be judged on his or her own merit, from the time he or she submits an application at least until the completion of the first interview.
The new law only applies to employers with 10 or more employees within the city of Philadelphia. An employer may not take adverse action against an applicant based on any arrest or criminal accusation that did not result in a conviction, nor may it ask the applicant to discuss such cases. A conviction is defined as any sentence arising from a verdict or plea of guilty or nolo contendere, including a sentence of incarceration, a suspended sentence, a sentence of probation or a sentence of unconditional discharge.
The law makes it an unlawful discriminatory practice for a prospective employer to inquire about an applicant’s criminal history or to require an applicant to reveal his or her criminal history before submitting an application and before the employer has had direct contact with the applicant. That contact can be by an initial telephone screening or in-person interview. If an employer chooses not to undertake an interview, it forever waives its right to inquire about an applicant’s criminal record.
Only if the applicant voluntarily raises his or her criminal convictions in the initial interview may an employer gather further information at this early stage in the hiring process.
Otherwise, an employer may inquire about an applicant’s convictions or conduct aafter the first interview (though employers are still barred from asking about an arrest history).
The law does not apply if otherwise prohibited inquiries or adverse action are undertaken when specifically authorized by any applicable law. Therefore, employers in certain industries—such as child care, banking, education and law enforcement—may still legally be able to ask about an applicant’s criminal history and run criminal background checks at an early stage in the hiring process.
Employers that violate the new law are subject to a fine of $2,000 for each violation.
If your company has 10 or more employees in Philadelphia, you should review your pre-employment and hiring practices. In particular, make sure your employment applications have been purged of any questions relating to an applicant’s criminal history. Make everyone involved in recruiting aware of the new law. Revise your hiring policies to ensure they are in compliance.
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