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Volume XII, Number 337

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Philadelphia Restricts Pre-Offer Criminal Record Screenings

By amending relevant sections of the Philadelphia Code, the City of Philadelphia has further limited employers’ ability to conduct criminal background screenings during the hiring process.

The City of Philadelphia has amended Chapter 9-3500 of the Philadelphia Code (Fair Criminal Record Screening Standards), which governs when and to what extent an employer may consider an applicant or prospective employee’s criminal history. The amendment restricts when an employer may inquire about criminal history during the application process and prevents consideration of incidents that did not result in a criminal conviction.

In its original form in 2012, the Fair Criminal Record Screening Standards ordinance prevented employers from including questions about criminal convictions on job application forms. The revisions implemented on December 15 by Mayor Michael Nutter take that a step further by prohibiting inquiries about an applicant’s criminal past until after the employer extends a conditional offer of employment. Only after a conditional offer is extended can employers conduct a background check, which can only reach back a maximum of seven years.

If a background check identifies criminal activity about an applicant after a conditional offer of employment has been extended, the employer must weigh several factors when deciding whether to hire the applicant. Specifically, the amendment mandates that employers weigh the nature of the crime, the time that has passed since the offense, and the job duties at issue. Should the employer choose to withdraw the conditional offer, the applicant must be notified in writing and provided a copy of the criminal record.

Mayor Nutter also signed an executive order comprehensively addressing background checks for city employment. The order requires the city to compile and publish a list of sensitive positions and barrier convictions, and provides applicants with the opportunity to respond to background check results.

Philadelphia employers should be aware that they now face additional scrutiny when conducting background checks and are required to delay them until after extending a conditional offer. Employers must also adhere to these new factors set forth in the Philadelphia Code when determining whether a background check provides grounds to withdraw an offer.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume V, Number 351
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About this Author

Paul Evans, Morgan Lewis, labor and employment lawyer
Partner

Paul C. Evans represents employers at the US state, federal, and appellate level in employment discrimination class actions, wage and hour cases, multiplaintiff and complex litigation, and other labor and employment matters. He also defends clients facing challenges to employer-selection devices such as pre-employment tests and credit and criminal record checks. Paul counsels clients in the entertainment, retail, telecommunications, technology, and insurance industries with matters in jurisdictions across the United States. Paul serves as the operations partner for the...

215-963-5431
Michael Ossip, Morgan Lewis, litigation attorney
Partner

Michael J. Ossip exclusively represents management in all facets of employee relations, including litigating employment discrimination and wrongful discharge claims in US federal and state courts. He has tried numerous jury and nonjury cases to verdict. Michael represents employers before federal, state, and local administrative agencies and advises on labor, employment, and trade secret matters. He previously served as Morgan Lewis’s general counsel and the firm’s in-house employment counsel.

215-963-5761
Christen Leah Casale, Morgan Lewis, Labor and employment lawyer
Associate

Christen Casale is part of a team regularly advising clients on virtually every type of labor and employment issue, from international counseling to management relations and labor disputes. While attending law school, Christen served as an executive editor to the University of Pittsburgh Law Review and as a member of the Mock Trial Team. She also externed for Judge Nora Barry Fischer of the US District Court for the Western District of Pennsylvania.

215-963-5604
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