Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

This week, Philadelphia Mayor Michael Nutter signed the Fair Criminal Record Screening Standards Ordinance (the "Ordinance").  This “ban the box” legislation is designed to limit Philadelphia employers’ ability to request applicants’ criminal history information in the initial steps of the hiring process. 

• Who is Covered?  The Ordinance covers any person, corporation, company, labor organization or association that employs 10 or more persons within the City of Philadelphia.        
   
• What Inquiries Are Prohibited?  Employers cannot inquire (directly or indirectly) about an applicant’s criminal convictions at any time during the application process, before the first interview, or during the first interview.  Notably, an employer that does not conduct an interview is prohibited from making any inquiries or gathering any information regarding the applicant’s criminal convictions. 
   
• What Inquiries Are Allowed?  The Ordinance does not prohibit employers from making hiring decisions based upon criminal conviction history; however, such inquiries must be delayed until a second interview (or as part of a post-conditional offer criminal history check).  Additionally, if an applicant voluntarily discloses his or her own criminal history during the application process or the first interview, the employer then is permitted to discuss the disclosed information. 
   
• What is the Penalty for Violations?  Violations of the Ordinance can result in the assessment of a maximum civil penalty of $2,000 per violation.  

The Ordinance becomes effective on July 17, 2011.  If you are an employer with 10 or more employees within the City of Philadelphia, now is the time to review your application and interview materials to ensure compliance with the new Ordinance.  In addition, employers should remain aware of their obligations under Pennsylvania’s Criminal History Record Information Act, which permits consideration of felony and misdemeanor convictions only to the extent that they impact an individual’s suitability for the position in question.  The Act also requires employers to give a rejected applicant written notice that the criminal conviction was used in whole or in part as the basis for the employment decision.

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Employers engaging in business where employees have “significant likelihood of regular contact with children” should be paying close attention to the amendments to Pennsylvania’s Child Protective Services Act, also know as Act 73. Act 73 became effective on July 1, 2008, and has taken many employers off guard.

Act 73 expands criminal background check requirements under the Child Protective Services Act beyond its traditional scope, which included employees engaging in child care professions, adoptive parents and foster families. Now, “prospective employees applying to engage in occupations with a significant likelihood of regular contact with children, in the form of care, guidance, supervision or training” must also undergo criminal background checks prior to being employed. Examples of such prospective employees identified by Act 73 include, social service workers, hospital personnel, mental health professionals, members of the clergy, counselors, librarians and doctors. 

What background checks are required for covered prospective employees? A Pennsylvania criminal background check, a Department of Public Welfare clearance and a report of Federal criminal history record information verified by a fingerprint check.   The Federal fingerprint check is new. Applicants with founded reports of child abuse during the five-year period preceding their application are ineligible to be hired. Applicants with any state or Federal convictions related to certain crimes (e.g. homicide, rape, indecent exposure and corruption of minors) are also ineligible to be hired. 

Act 73 is creating some headaches for employers in a couple of areas. The Act’s general statement concerning “significant likelihood of regular contact with children” is not further defined and there are no anticipated regulations coming to give further guidance to employers. Employers, such as hospitals, that provide services to children and adults are struggling to define what employees fall within Act 73’s requirements. For example, housekeeping and environmental services employees may have contact with children simply by being present in the hospital, although childcare is not part of their job.

Another area causing difficulty for employers is the new requirement of a Federal background fingerprint check. Employees are initially responsible for obtaining the Federal background check. These checks can take upwards of sixty days and many applicants are simply unaware of the new requirements at the time they apply. The result has been difficulty in filling needed positions quickly. Employers are permitted to hire employees on a provisional basis provided that the employee provides proof of application for a Federal background check. Provisional hiring periods for in-state applicants cannot exceed 30 days. The period is 90 days for out of state applicants.

Employers should approach Act 73 with an abundance of caution, especially in light of its potentially broad reach. Intentional failure of a person to obtain necessary background checks from a covered applicant is a misdemeanor of the third degree.

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Target Corp. has agreed to pay $6 million in damages to plaintiffs in California unable to use its online site as part of a class action settlement with the National Federation of the Blind. The issue centers on the Americans with Disabilities Act’s requirements that retailers and other public places to make accommodations for people with disabilities. Target had argued that the ADA covered only physical spaces. The California court held that the ADA covers an online retailer’s website. Websites can be made more accessible through screen-reading software that converts text into speech for visually impaired access. The court certified the case as a class action before it settled.

The case has important implications for retailers who may now face class action lawsuits. Employers that rely on a web-based application and recruiting processes should also examine their websites for compliance with the ADA’s employment provisions which require accessibility and accommodation in the hiring process.   A recent OFCCP Directive sets forth the agency's policy on review of employer websites where applications are solicited:

Effective immediately, all compliance evaluations shall include a review of the contractor's online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The review should include whether the contractor is providing reasonable accommodation, when requested, unless such accommodation would cause an undue hardship. In this directive, the term "online system" shall include, but not be limited to, all electronic or web-based systems that the contractor uses in all of its personnel activities.

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