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Outside the Philadelphia Box: Limited Exemption
Posted 06.05.11
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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.” The Philadelphia Ordinance, which goes into effect on July 13, 2011, applies to private employers of 10 or more employees in the City of Philadelphia.  The Philadelphia 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 ask about or consider criminal convictions as part of the early stages of the application process.  Employers cannot ask about criminal convictions on the application process or during the initial interview. It is only after the initial interview that employers may ask about criminal convictions.  The Ordinance provides limited exemptions, including instances in which “inquiries or adverse actions otherwise prohibited by the Ordinance are specifically authorized by other applicable law.” The scope of this exemption is far from clear.  However, there are three (3) potential ways that one could try to interpret the exemption:

1. If an employer is required to conduct criminal background checks, it is exempt from the Ordinance.

 2. If an applicant is applying for a job that is subject to a criminal background check required by another law, he or she is exempt from the Ordinance.

3. If an applicant is applying for a job that is subject to a criminal background check  required by another law, he or she is exempt from the Ordinance but only with regard to those convictions for which the employer must check.

Based on the language of the exemption, Option 1 is not a viable interpretation.  The exemption is not set forth as an exception to the definition of covered employers and clearly speaks to specific inquiries and actions. For similar reasons, Option 2 probably is not a viable interpretation, either. The exemption speaks to inquires and actions and not more generally to applicants to which they relate. The most probable interpretation is Option 3.  That is, the exemption most probably must be interpreted as co-extensive with any legal mandate that may exist.  This interpretation precludes the kind of uniformity and administrative ease that otherwise would be desirable. For example, Pennsylvania Act 73 requires that employers of prospective employees “applying to engage in occupations with a significant likelihood of regular contact with children, in the form of care, guidance, supervision or training,” must obtain from such prospective employees a criminal record history (federal and state).  More specifically, Act 73 provides that covered employers: [S]hall require applicants to submit with their applications the following information obtained within the preceding one-year period:

(1)        Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal history record information), a report of criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the State Police central repository contains no such information relating to that person.  The criminal history record information shall be limited to that which is disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to general regulations).

(2)        * * *

(3)        A report of Federal criminal history record information.

23 Pa. C.S.A. § 6344(b).

Accordingly, hospitals (as well as schools, day care centers and other employers where employees have regular contact with children) in Philadelphia most probably can ask a broad question about criminal convictions as part of their initial application but only as to those applicants who are likely to have a significant likelihood of regular contact with children, if hired.  Whether the prospective employee will likely have regular contact with children will depend on the circumstances, including the services provided at the hospital or other employer and the duties of the prospective employee. Another example involves the Federal Deposit Insurance Act, which applies to banks and certain other financial institutions.  Section 19 of the Act prohibits any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution, from becoming or continuing as an institution-affiliated party; owning or controlling, directly or indirectly, an insured institution; or otherwise participating, directly or indirectly, in the conduct of the affairs of an insured institution without the prior written consent of the FDIC.  The criminal offenses covered by the Act are specifically defined by the Act. Employers covered the Federal Deposit Insurance Act most probably must limit their inquiry on their application (before the first interview) to crimes involving dishonesty, breach of trust and money-laundering.  Of course, after the first interview, nothing in the City ordinance prohibits the employer from asking a broader question about other criminal convictions, such as murder and rape. The bottom line is that the exemption to the prohibitions in the Ban the Box Ordinance is narrowly worded so that, even where it applies, it most cases, it most probably precludes a covered employer from having a uniform and broad question about criminal convictions on its initial application for employment.

This blog shall not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

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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 .