Philadelphia Amends its Fair Criminal Record Screening Standards Ordinance
Starting April 1, 2021, the City of Philadelphia will expand its Fair Criminal Record Screening Standards (“FCRSS”) to protect current employees, independent contractors, and gig workers who work within the City’s geographic boundaries. The FCRSS has and will continue to apply to job applicants.
Generally, FCRSS had prohibited employers from considering an applicant’s criminal history during the hiring process and before a conditional employment offer was made. Now, employers are also prohibited from using criminal histories for re-employment decisions and continued employment, including promotions, raises, and/or terminations.
To the extent they are allowed to consider an individual’s criminal background, employers must conduct an individualized assessment before making a decision. Specifically, an employer must consider the following six (6) factors:
- The nature of the offense;
- The time that has passed since the offense;
- The applicant’s or employee’s employment history before and after the offense and any period of incarceration;
- The particular duties of the job;
- Any character or employment references provided by the employee; and
- Any evidence of the applicant’s rehabilitation since the conviction.
The FCRSS further requires employers to give individuals written notice of and reasons for a negative employment decision that is based, in whole or in part, on the individual’s criminal record information. The written notice must include a copy of the individual’s criminal history report, and the employer must give the individual 10 business days to provide evidence of the inaccuracy or to provide an explanation.
Under the amendments, employers can now inquire about an employee’s pending criminal charge if it is job-related. However, the employer’s written policy must detail the pending charges that must be reported and, if proceeding with termination, the employer must “reasonably” conclude that the employee’s continued employment would present an “unacceptable risk to the operation of the business or to co-workers or customers” and that terminating the employee is “compelled by business necessity.”
Lastly, the amended FCRSS replaces punitive damages with liquidated damages. Instead of a cap of $2,000 per violation, a complainant can potentially recover liquidated damages equal to the payment of the maximum allowable salary for the job subject to the complaint for a period of one month, not to exceed $5,000.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.