How Philadelphia’s New ‘Ban the Box’ Law May Hurt Employers and Employees

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I am pleased to share my blog post for Philadelphia Business Journal.

“Ban the Box” initiatives are hot and likely to get even hotter. Indeed, for employers in Philadelphia, the law just did.

By way of background, “Ban the Box” initiatives are state laws or local ordinances that restrict when employers can ask about criminal convictions. The box that is banned is the answer to the question: have you been convicted of a crime…..”

The policy considerations behind these initiatives is quite understandable. African Americans and, to a lesser degree, Latino Americans, are more likely than white Americans to have criminal convictions. It is fair to assume that most employers do not smile with glee when they see an affirmative answer to the application question about criminal convictions.

So asking the question up front may have a disproportionately hard effect on such minority groups. Conversely, if the question is removed from the application, the hope is that more applicants in these communities at least will be interviewed and have an opportunity to show what they can bring to the workplace before the employer learns of any convictions that may exist.

In 2011, Mayor Nutter signed into law an ordinance (that went into effect in 2012) that required employers to wait until after the first interview to ask questions on criminal convictions or conduct background checks with regard to same. It was, in my view, a reasonable balancing of the various interests.

This week, Mayor Nutter signed into law a new ordinance (that will go into effect in 2016, 90 days after signing) that will make the ban-the-box ordinance on the books even tighter. Employers will not be able to ask about criminal convictions (or conduct background checks with regard to same) until after a conditional offer of employment has been extended.

Plus, the new law will apply to all employers, even those with only 1 employee. The current law applies only to employers of 10 or more employees.

How does this play out in the real world?

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