What’s in the Box?

Criminal convictions come with consequences beyond the punishment imposed for the crime itself. For many individuals who have been through the criminal justice system, the most difficult hurdle to overcome when trying to get their lives back on track is finding employment. Employers, when seeing a “yes” in response to a question concerning the existence of a criminal record, may be less likely to consider that applicant for the position without further investigation or follow-up, and regardless of whether the candidate is otherwise qualified for the position.

In recognition of this impediment facing some job applicants, there is a growing legislative movement to “ban the box,” and implement other forms of “fair chance” laws that prohibit employers from asking about criminal convictions on job applications. For the most part, these laws have been drafted to still allow employers to hire the candidates who are the best fit for the positions; however, care must be taken to ensure compliance with the mandates of the law with respect to when these convictions are disclosed, and how job applicants with criminal records are handled.

Federal law currently allows employers to ask job applicants about their criminal history, but they must do so in a non-discriminatory manner. At the state level, Pennsylvania law does not prohibit an employer from asking job applicants about their criminal history. However, the state’s Criminal History Record Act requires that any felony or misdemeanor conviction may only be considered by an employer to the extent that it relates to the applicant’s suitability for the position being sought.

Earlier this year, Governor Tom Wolf implemented a “Fair Chance Hiring Policy” for employment within the state government. The policy “bans the box,” or requires the removal of criminal history questions, from applications for non-civil service state government jobs. Pennsylvania’s two largest cities have enacted ordinances that restrict inquiries into the criminal records of job applicants. Philadelphia’s ordinance prohibits public and private employers located in Philadelphia from asking any questions about criminal records on job applications or during interviews, and mandates that no criminal background check can occur until after a conditional job offer has been made. Pittsburgh’s “ban the box” ordinance applies to city employment, as well as employment by vendors and contractors doing business with the city. Only once a job candidate is deemed to be otherwise qualified, can the employer then proceed with a background check of the applicant.

As with all laws, there are exceptions and nuances that employers and employees need to be aware of to protect themselves from adverse action being taken. Due to the pace and frequency at which these “fair chance” laws are changing, it is imperative that employers and job applicants alike, with the help of knowledgeable and experienced legal counsel, remain informed about their rights and obligations.

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