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Jonathan A. Segal
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On April 13, 2011, the Mayor of the City of Philadelphia signed an Ordinance entitled “Fair Criminal Record Screening Standards” which establishes requirements for the screening of criminal records by certain employers within the City of Philadelphia and limits an employer’s ability to consider arrests and convictions of job applicants.  The stated purpose of the legislation is to “give the individual with a criminal record an opportunity to be judged on his or her own merit during the submission of the application and at least until the completion of an interview.”

The Philadelphia Ordinance applies to city agencies and private employers of 10 or more people (employees) in the City of Philadelphia. However, even if an employer is covered by the Ordinance, it applies only to applicants who are applying for jobs in the City of Philadelphia.

The Ordinance makes it unlawful for an employer to make any inquiry about, to take any adverse action against any person on the basis of or to require any person to disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction.

The Ordinance goes a step further and limits the ability of an employer to consider even criminal convictions as part of the early stages of the application process.  The Philadelphia Ordinance makes it unlawful for employers in the City of Philadelphia to make any inquiry regarding or to require any person to disclose or reveal any criminal convictions during the application process, which begins when an applicant inquires about employment and ends when an employer has accepted an employment application.

What’s more, the employer cannot make an inquiry regarding or require a person to disclose or reveal any criminal convictions before and during the first interview either.  If the applicant voluntarily discloses any information regarding his or her criminal convictions at the interview, the employer may discuss the criminal conviction disclosed by the applicant.

The Ordinance becomes effective ninety days after it was signed into law, in other words, on July 13, 2011.

Violations of the Ordinance will carry a fine of up to $2,000 per violation.  Further, it is inevitable that violations of the Ordinance will be argued as the basis for wrongful failure to hire claims.

What This Means For Employers

Employers in Philadelphia will need to remove from their Applications for Employment any questions about criminal convictions (except where required by another law, in which case a separate application with an appropriate question consistent with the legal requirement must be developed for such applicants only).

Employers in Philadelphia who wish to inquire about criminal convictions will need to develop a criminal conviction inquiry form (focusing only on convictions) to give to applicants who have completed their first interview and to whom they wish to extend either a second interview or a job offer.

In this regard, employers should be careful to avoid the temptation to give the criminal conviction form to all applicants immediately following their initial interview to make things easier administratively. Why obtain information about applicants in whom you have no interest? Applicant may assume–and argue–the information was the basis for adverse action (even though it was not). At  a minimum, there is the cost of defense.

Philadelphia employers must consider not only the Fair Criminal Record Screening Standards Ordinance, but also the Pennsylvania Dissemination of Criminal History Records Information Act, which restricts when Pennsylvania employers can consider criminal records and includes notice requirements.

Under the Pennsylvania Dissemination of Criminal History Records Information Act, employers can consider felony and misdemeanor convictions only if they relate to the applicant’s suitability for the job for which he or she has applied.   Further,  the employer may be precluded absolutely from considering arrest records (which have not resulted in convictions) as part of the pre-employment process.

Further, both the EEOC and PHRC have released guidance which states that disqualifying applicants due to arrest or conviction records may have a disparate impact on certain racial and ethnic groups, and therefore, have suggested similar (but not identical) factors which should be considered before making any adverse employment decision upon a criminal record.

Employers need to be particularly careful of per se rules (for example, individuals with felonies are disqualified from employment for all jobs).  These rules maximize consistency but also may serve as the basis for class actions alleging disparate impact.

According to the National Employment Law Project, at least five (5) major civil rights lawsuits were filed against employers for blanket prohibtions relating to criminal convictions.

If you have questions about how the various laws affect criminal conviction checks, please feel free to contact me at 215-979-1869 or jsegal@duanemorris.com.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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When I was in college, I had an incredible professor who used to talk about the “unanticipated evil consequences of virtuous social action.” I had no idea what he meant but he sounded so regal that I wrote down what he said every time until it become indelibly etched in my mind.

I heard my professor’s voice when I read the EEOC’s new regulations on the ADA as amended. While the ADA is indeed virtuous social action, it is now even riskier than before to try to help an employee whom you suspect has a physical or mental problem unless he or she asks for help first and here’s why.

By way of background,  a disability is a physical or mental impairment that substantially limits one or more “major life activities.”  An employer cannot discriminate on the basis of: (i) current disability; (ii) past disability or (iii) perceived (regarded as) disability.

Perhaps the biggest expansion of the definition of disability relates to the “regarded as” disability prong.  More specifically, the law now provides that an individual may be regarded as having a disability if he or she is subject to adverse action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

This is a very easy standard to meet. Indeed, in its new regulation, the EEOC all but invites individuals to bring claims under the “regarded as” prong without having to prove that the individual actually has or had an actual disability as defined by the ADA. And, here’s where the  unintended adverse consequences come into play.

Assume an employee’s performance is declining and you see what you believe to be is clinical depression based on personal experience or exposure.  Ask the person if they are depressed and their depression may lift when they realize that they now may have a viable “regarded as” disability claim if they subsequently are subject to an adverse employment action. The well-intended question creates an issue of fact for the jury as to what was the employer’s true motivation for the adverse action.

Employers need to train their managers to focus on performance or behavioral deficiencies without inquiring or speculating as to whether there is a physical or mental cause. This counsel is particularly important for health care and social service employers whose managers “know” that, at times, the workplace issue is but a symptom of some underlying physical or mental problem.

What should the manager do if the employee responds to counseling, discipline or an evaluation by disclosing a physical or mental accommodation? Stay tuned for my next blog!

This blog should not be construed as legal advice or as pertaining to specific factual situations.

About Jonathan A. Segal
615
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .