Philadelphia Expands Employer Background Screening Requirements

The Details

The City of Philadelphia has passed Ordinance 250373-A (“the Ordinance”) that clarifies and amends provisions under the Fair Criminal Record Screening Standards Ordinance. The Ordinance is effective Jan. 6, 2026.

Background

By way of background, in 2024, the City of Philadelphia had amended its Fair Criminal Record Screening Standards Ordinance (FCRSSO) to consider employers rejecting an applicant or employee on the basis of a conviction that has been exonerated (reversed or vacated by the court or other government official) an unlawful discriminatory practice.

Under the Ordinance, an employer may consider the conviction record of an applicant or employee for job-related employment purposes to the extent that the conviction did not result in exoneration and occurred fewer than seven years from the date of the inquiry.

Note: A period of incarceration is not included when calculating the seven-year period.

Ordinance 250373-A

Expanded protections

In addition to existing protections under the FCRSSO, the Ordinance prohibits an employer from excluding an applicant or employee unless (based on the available information and consideration of certain assessment factors listed in the Ordinance), a reasonable person would conclude that employing the applicant or employee would pose a specific unacceptable risk to the operation of the business or to co-workers or customers, as independently determined by the fact finder.

The Ordinance enhances the individualized assessment: "Any evidence of the applicant's or employee's rehabilitation since the conviction" to include credible information that shows:

·      Completion of a mental health or substance use disorder treatment program, a job training program or a GED or post-secondary education program

·      Service to the community

·      Work history in a related field since the time of conviction or incarceration

·      Active occupational licensure, commercial driver licensure, or other licensure necessary to perform the specific duties of the job

Under the Ordinance, unless otherwise required by state or federal law, an employer may consider, for employment purposes:

·      An applicant's or employee's felony conviction record only to the extent that the conviction did not result in exoneration and the underlying arrest or the release from incarceration for such conviction, whichever is later, occurred fewer than seven (7) years from the date of the inquiry. Any period of incarceration is not be included in the calculation of the seven (7) year period.

·      An applicant's or employee's misdemeanor conviction record only to the extent that the conviction did not result in exoneration and the underlying arrest or the release from incarceration for such conviction, whichever is later, occurred fewer than four (4) years from the date of the inquiry.

A private employer cannot consider, for employment purposes, an applicant's or employee's:

·       Summary offense conviction record; and

·       Conviction record that has been expunged, sealed, or otherwise cannot be used under the Ordinance (whether the record appears on a criminal background check, a driver record issued by the Pennsylvania Department of Transportation or any other source).

Note: If an expunged or sealed criminal record appears on a driver record, the employer must allow the applicant or employee to provide evidence of expungement or sealing.

The Ordinance also clarifies other terms and employment-related definitions, including inquiry, job advertisement, adverse action, excessive and unreasonable levels of suspicion, felony, misdemeanor, summary offense, and incarceration. See the Ordinance for the amended definitions of these terms.

Additionally, the law previously allowed an individual ten business days to provide evidence of the inaccuracy of the information or to provide an explanation. The Ordinance clarifies that this time must occur before an employer makes its final employment decision.

Nonretaliation

An employer cannot interfere with, restrain, deny the exercise of, or the attempt to exercise, any right under the Ordinance, or retaliate against an employee for exercising their rights under the Ordinance.

Under the Ordinance, unlawful retaliation:

·      Includes adverse actions taken prior, during, or after the termination of the worker's relationship with the employer; and

·      Can exist when the protected activity is one of several motivating factors for the adverse action.

See the Ordinance for the amended definitions of these terms

Notice Requirements[CS1] 

The Ordinance clarifies that:

·      The existing required notice is a pre-adverse (provisional) and must include the specific convictions being considered; and

·      An employer must provide a copy of the criminal record used in the provisional decision to the applicant or employee.

The Ordinance also requires an employer to provide an additional notice, written in plain language that includes the following to an applicant or employee:

·      A summary of their rights under the FCRSSO;

·      A statement that their evidence of any error in the criminal history records and evidence of rehabilitation and mitigation will be considered. Note: The notice should include a list of the types of evidence that may be used under the law; and

·      Instruction on how to exercise their right to provide evidence or explanation directly to the employer.

The Philadelphia Commission on Human Relations (the "Commission"), or another City department or office the Mayor may designate, may issue regulations implementing and interpreting the notice requirements.

Penalties

Employers found to have violated the Ordinance may face civil penalties of up to $2,000 per violation. See the Ordinance for additional enforcement details.

Next Steps

• Review background screening and hiring policies and procedures.
• Train HR personnel to help ensure compliance with the Ordinance.