Observing the current political scene, it appears that we are a society which finds it easier to hate than to love our neighbors. Over the course of time, the political landscape has become so volatile, that initiating even the most minimal political topic can lead to arguments, hurt feelings, misunderstandings, etc. Years ago I enjoyed having spirited discussions with people who had far different political views than mine, and we agreed to disagree, and remain friends. Nowadays, with the Congressional approval rate hovering at 10%, and moderates of both parties fleeing Congress, intolerance, distrust, misunderstanding and hate rule the political scene.
The above brings me to a topic that has concerned me for some time. I believe in giving people a second or third chance. Yet, the intolerance against hiring people with some sort of criminal background has reached a fever pitch. Is it better to try and make these persons productive members of society, or is it better to punish them forever, make them unable to earn a living, make them unable to support their families, and require them to rely on government services for an income, food and insurance? I am not naïve enough to assume that a lifelong criminal will turn his/her life around if kindness shown to them. But, if anyone with a criminal background is denied a job or a means to support themselves and their families, it is pretty clear that they will return to their criminal ways.
Philadelphia enacted a “Ban the Box" Ordinance on April 13, 2011, which went into effect on July 12, 2011. Its official title is The Philadelphia Fair Criminal Record Screening Standards Ordinance (Bill No. 110111-A). This Ordinance is intended to encourage the hiring of qualified ex-offenders by ensuring that employers screen applicants based on their work qualifications, without consideration of their prior criminal history, at least initially. Violations of this ordinance can result in a fine of up to $2,000 per violation, which has to be paid to the City of Philadelphia, NOT the applicant, and even if an employer is found to have violated Ban the Box THE EMPLOYER DOES NOT have to give the applicant the job. The Ordinance is administered by the Philadelphia Commission on Human Relations.
The Ordinance requires that all City and private employers with 10 or more employees, except (AND NOTICE THESE VERY LARGE EXEMPTIONS) criminal justice agencies such as prisons, courts, police departments, and employers who are required by state or federal law to conduct criminal background checks and to deny employment where necessary. Other potential employers cannot ask for criminal record histories on an application or during the first interview (this includes phone, e-mail or in-person interviews) to discuss the employment offered or the applicant’s qualifications. An application can’t ask about any criminal convictions, or any arrest or accusation which isn’t pending and didn’t result in a conviction. Of course an applicant can volunteer this information, and this would expand the types of inquiries possible. After the first interview an applicant can be asked about a criminal history and a background check can be done, only if it resulted in a conviction. An employer can’t intentionally or knowingly make any adverse employment decision unless it regards a conviction. Finally, employers are required to provide written notification to applicants when the employment denial was based on a past conviction or arrest.
As if the above is not confusing enough, and no doubt has potential employers in fear of erring, many people don’t know what a conviction means (does it apply to people who took a lesser plea than the original charge(s), does it apply to people who selected driving school, does it apply to people who think their record is going to be or has been expunged?) There has been a Pennsylvania law on the books for some time prohibiting employers from denying employment on the basis of a criminal conviction unless the crime is sufficiently related to the position for which one is applying (see 18 Pa.C.S.A. Sec. 9125). An example is that someone convicted of burglary need not be hired for a position which would place them near money. This law has rarely been tested, because it is very costly to test the law, and most people who are looking for a job and have been unjustly denied one, can’t afford to test this law. I tested it once on behalf of a client, and the case was settled because the judge said she would apply the law very narrowly.
This conviction analysis requires a case by case analysis, and I think I am safe in saying that employers have enough on their minds and would find it much easier to err on the side of caution, and not hire someone with any type of criminal background for any type of job. Therefore, despite the best intentions of lawmakers, I don’t see the current laws on the books as resolving the situation of assisting persons with a criminal background in finding jobs.
You can read this and other posts on Ms. Cohen’s blog, ToughLawyerLady.
Employment / Labor Attorney