- with Inhouse Counsel
For years, Philadelphia's Fair Criminal Records Screening Standards Ordinance (FCRSS)—also known as the "fair chance" or "ban the box" law—has limited the extent to which employers could ask about and consider the criminal histories of applicants and employees. Now, under amendments to the FCRSS, set to take effect January 6, 2026, employers will need to review and potentially adjust their criminal history screening practices to comply with new requirements that further restrict how they can use such information to make employment decisions.
In September, Philadelphia City Council passed amendments to the FCRSS that clarified certain aspects of the law and created enhanced protections for applicants or employees with criminal records, creating additional obligations for employers.
Among the clarifications are express definitions of terms previously not defined, such as "incarceration," which under the amendments means only "lawful confinement in a jail or prison" and not "parole, home confinement, or residence at a treatment facility or residential program," and "job advertisement," now defined to mean "any solicitation, advertisement, or publication made, orally or in writing, to communicate with" prospective employees. Additionally, the law now refers specifically to Pennsylvania criminal statutes to define levels of offenses, and it adds a broad definition of "adverse action" that includes "excessive and unreasonable levels of supervision" (a term itself now defined under the amendments to require justification by an "individualized assessment" of risks related to the person's criminal past).
Substantive Changes
No Consideration of Misdemeanor Convictions More than 4 Years Old
The amendments limit the time period during which an employer may consider an applicant's or employee's conviction of a misdemeanor offense, changing this from seven years to four years after the date of the conviction or release from incarceration for the offense, whichever is later.
No Consideration of Summary Offenses
Under the amendments, an employer may not consider low-level, summary offenses in employment decisions.
No Consideration of Expunged or Sealed Records
An employer now will not be permitted to consider a conviction record that has been expunged or sealed and, if such a record appears on a person's driving record, the employer must give the person an opportunity to provide evidence of expungement or sealing.
New Required Content in Notices
If an employer gives prospective candidates notice that it intends to conduct a background check as part of the employment process, including in a job advertisement, it now will be required to say therein that "any consideration of the background check will be an individualized assessment based on the Applicant or Employee's specific record and the duties and requirements of the specific job." (Applicable federal and state laws also require that an employer obtain the written authorization of an applicant or employee to conduct a background check, which the FCRSS amendments do not affect.)
Pre-Rejection Notice Requirements
The amendments provide that, before an employer rejects an applicant or employee based in whole or in part on criminal record information, it must provide the person with a notice containing (1) a summary of rights under the FCRSS; (2) a statement that the employer will consider evidence of any error in the records or of the person's rehabilitation and mitigation, including a list of the types of such evidence he or she can provide (set forth immediately below); and (3) instructions on how the applicant or employee can provide such evidence to the employer.
Specific Rebuttal Evidence for Employers to Consider
The amendments set forth the following factors of which an applicant or employee can present "credible evidence" in response to a pre-rejection notice to show rehabilitation and/or mitigation:
- Completion of a mental health or substance use disorder treatment program;
- Completion of a job training program;
- Completion of a GED or post-secondary education program;
- Service to the community;
- Work history in a related field since the time of conviction or incarceration; and
- Active occupational licensure, commercial driver licensure or other licensure necessary to perform the specific duties of the job.
Expanded Protections Against Retaliation
The amendments include an express prohibition on retaliation against any applicant or employee, and they create a rebuttable presumption of unlawful retaliation where an employer takes adverse action against a person within 90 days after the person exercised rights under the FCRSS, subject to certain exceptions.
Adverse Action Still Required
Under both federal law and the FCRSS, an adverse action against an applicant or employee is a predicate for liability, which is unaffected by these amendments.
Damages Amended
Additionally, the amendments establish a right to new, separate liquidated damages in an amount equal to any actual monetary damages awarded by the Philadelphia Commission on Human Relations, which is empowered to administer and enforce the FCRSS.
What Employers Need to Know
Employers, especially those with operations in multiple jurisdictions, must take care to stay apprised of changes to state and local laws on the permitted use of criminal background information in the hiring and promotion processes. These new obligations and protections in Philadelphia, set to take effect early next year, demand attention and advance consideration.
Before the new year, employers with Philadelphia operations should review their application and promotion processes, including forms and any other documents related to criminal history screening, for compliance with the FCRSS as amended. Among other things, human resources personnel should receive training on how to conduct criminal inquiries and interact with candidates within the now-expanded strictures of the FCRSS. Termination decisions also should be subject to careful vetting and documentation where they may trigger the new rebuttable presumption of retaliation.
For More Information
If you have any questions about this Alert, please contact Jonathan A. Segal, Adam Brown, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
