******* The ordinance takes effect on July 12, 2011 *********
Philadelphia’s city council has passed and the mayor has signed a city ordinance that regulates employers who employ at least 10 people in Philadelphia. In part, the ordinance prohibits employers from taking adverse action based on an arrest or accusation that is not still pending and hasn’t resulted in a conviction and prohibits employers from asking about convictions prior to the completion of an interview.
The first section of this new law prohibits employers from making an inquiry about, requiring a person to disclose, or taking adverse action based on any arrest or criminal accusation that is not still pending and did not result in a conviction.
Two important notes:
- First, employers would be wise to consider when a criminal case is “pending” if the defendant has been placed in a diversion program. One can argue that, if the defendant can still be convicted if he or she fails to meet the terms of the diversion program, then the case is still pending. The opposite point is also true: if an applicant has completed a diversion program that results in a dismissal of the case, the case is no longer pending and a conviction did not result.
- Second, the law declares it illegal for an employer to “make any inquiry about or to take any adverse action against any person on the basis of any arrest or criminal accusation made against such person” or “require any person to disclose or reveal any arrest or criminal accusation made against such person.” These prohibitions appear in separate sentences; since courts will assume that the city council did not intend to repeat itself, courts will find that these are two different prohibitions. One possible interpretation is that the prohibition on making any inquiry is different from the prohibition on requiring anyone to disclose because the prohibition on making any inquiry is not limited to inquiries directed to the applicant. Under this theory, it could include inquiries directed to a consumer reporting agency. A better interpretation is that the prohibition on inquiries prohibits asking the question (even if the answer is optional) where the prohibition on requiring disclosure is intended to forestall any clever arguments that some requirement to disclose wasn’t actually a question.
The second section of this new law prohibits employers from making an inquiry about or require a person to disclose any criminal convictions before the employer accepts the application and completes an interview. If the employer does not interview the applicant, then the law flatly prohibits the employer “from making any inquiries or gathering any information regarding the applicant’s criminal convictions.” Four notes on this section:
- First, this means that, if an employer does not interview an applicant, the employer cannot ever ask the applicant about the applicant’s criminal convictions.
- Second, a phone interview counts.
- Third, the ordinance does allow the employer to discuss the applicant’s criminal convictions if the applicant brings the topic up. Proving that the applicant did so may be very difficult as a practical matter. Conservative legal departments may want to supply their hiring managers with a form for the applicant to sign that acknowledges that the applicant brought the topic up.
- Fourth, the phrase “or gathering any information” adds ambiguity to the ordinance. Unlike other sentences, this sentence does not make it illegal to “require any person to disclose or reveal,” which is the phrase that the ordinance otherwise uses consistently. As described above, a court could find that the city council meant something different by using a different phrase. One possible interpretation is that “gathering any information” could be intended to be broad enough as to prohibit employers from asking third parties for information. Based on the apparent intention of “banning the box,” rather than conditionally banning consumer reports for employment purposes, the better interpretation seems to be that the city council did use a different word to express the same idea, so gathering means only requiring a person to disclose or reveal information.
The ordinance does have exemptions for inquiries specifically authorized by other laws and for governmental criminal justice agencies.