Legislation and Compliance update April 2011 - Philadelphia City Ordinance Bans the Box

By Michael Klazema on 4/28/2011

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 ordinance takes effect on July 12, 2011.

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. The full ordinance is available at Limited legislative history is available at

Disclaimer: We are not a law firm. Our people are not your attorneys. If you need legal advice about this topic, hire a lawyer.

Tag Cloud
Recent Posts

Latest News

  • December 04 Chicago Public Schools has dismissed hundreds of employees, coaches, vendors, and volunteers based on background check findings. The district recently vowed to re-check the majority of its 68,000 employees after a Chicago Tribune investigation revealed holes in its background check policies.
  • November 29 Striving to create a safer environment more conducive to productive training and leadership development, the Army has recently moved to adopt a uniform policy of background checks for certain roles. 
  • November 27 California’s biggest public school district is waiving the cost of volunteer background checks. The move is meant to encourage more family - and community members to get involved with the school district.
  • November 22 Contractors play an important role in the workforce, delivering services to both individuals and organizations. Vetting contractors for suitability continues to be a challenge, as two recent articles prove.
  • November 21 When it comes to background and pre-employment checks, it can be instructive to look at the characteristics of the ten most massive U.S. employers.
  • November 20 The #MeToo movement is bringing about legislative changes employers need to know about. We review some of the laws recently passed in California.
  • November 19

    Will a criminal conviction show up on your background check forever? In most states, there is a year limit for how long background check companies can report older criminal information.

  • November 15

    Replacing an inconsistent array of procedures, Ontario's government has passed into law a reform act intended to clarify how police departments should handle requests for information to be used in background checks. 

  • November 14 The federal government has vowed to cut its backlog of security clearance background checks in half by spring. Currently, the backlog is approximately 600,000 names strong.
  • November 12 To ensure the best hires, DFWSPF has implemented a stringent employee screening process—one that includes background searches through