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It is well documented, and at this point well known, that as a society we’ve long indulged ourselves in the pernicious catch-22 that stable employment reduces recidivism but criminal records prevent those with them from gaining employment.
Philadelphia has taken steps to break down the barriers that keep individuals with criminal records from employment opportunities. In 2011, Philadelphia passed the “Ban the Box” ordinance, which prohibits prospective employers from making any inquiry into your criminal record during the initial application process. While an important symbolic step forward, Ban the Box included significant limitations. The ordinance did not prohibit an employer from considering information about criminal records “volunteered” by the applicant, and did not provide for any remedy for an effected job applicant.
Major changes to Ban the Box went into effect in March 2016. Significantly, there is now a private right of action if a prospective employer violates Ban the Box. While an affected individual must first file a complaint with the Philadelphia Human Relations Commission, the changes to Ban the Box allow the affected individual to obtain damages, including punitive damages, attorney fees, and equitable relief.
Other significant changes include requiring the prospective employer to postpone any criminal records inquiry until after a conditional offer is made, and if the inquiry is made they must ignore any conviction more than seven years old. Even then, similar to Pennsylvania’s Criminal History Record Information Act (“CHRIA”) which requires a prospective employer to consider whether a conviction “relates to the applicant’s suitability for employment in the position for which he has applied,” the Ban the Box changes require the employer to make an individual assessment of the applicant (i.e., cannot bar any applicant because of any conviction as a bright-line rule), including but not limited to the particular duties of the job sought, pre- and post-conviction work history, character evidence, and evidence of rehabilitation.
When a job applicant is denied an offer of employment, whether in whole or in part due to a criminal record, the employer must provide the applicant with written notice of the decision, a copy of the criminal record, and provide the applicant with an opportunity to explain the record of demonstrate its inaccuracy.