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Philadelphia Revises Background Check Law

 

Philadelphia’s Fair Criminal Records Screening Standards (FCRSS) became effective in 2016.  The ordinance bans all employers in the city from inquiring into a candidate’s criminal history and requesting a criminal background check until a conditional offer of employment is made.

Employers cannot reject a candidate based on a criminal record unless the conviction “bears such relationship to the employment sought that the employer may reasonably conclude that the applicant would present an unacceptable risk to the operation of the business or co-workers or to customers,” and excluding the candidate from employment is “compelled by business necessity.”  If a criminal background check reveals a conviction, the employer must consider:

  • The nature of the offense;
  • The time that has passed since the offense occurred;
  • Its connection to the job that the candidate applied for; and
  • The candidate’s job history, character references, and any evidence of rehabilitation.

If an employer rescinds a conditional offer based in whole or in part on the candidate’s criminal history, the employer must provide the candidate with a written notice, including a copy of the criminal history report relied on for the adverse decision. Employers must allow a candidate ten business days to dispute the accuracy of the criminal history reported, provide an explanation, or submit proof of rehabilitation.

Recent amendments expand the scope of the FCRSS.  Effective April 1, 2021, in addition to candidates for employment, current employees will also be subject to the review and notice processes established by the FRCSS.  The amendments also clarify that the FRCSS also covers independent contractors, transportation network company drivers, rideshare drivers, or other gig economy workers.

The Philadelphia City Council also amended the city’s Fair Practices Ordinance that protects against Unlawful Credit Screening Practices in Employment (UCPE). The UCPE prohibits employers from considering a candidate’s or employee’s credit history “in connection with hiring, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment with respect to such employee or applicant.”

While the UCPE originally included an express exemption for law enforcement agencies and financial institutions, that exemption no longer applies as of March 21, 2021.  Instead, any organization seeking to assess a worker’s credit history can only do so if the job:

  • Requires an employee to be bonded under city, state, or federal law;
  • Is supervisory or managerial in nature and involves setting the direction or policies of the business;
  • Requires significant financial responsibility to the employer excluding jobs involving retail transactions;
  • Involves access to sensitive financial information related to customers, other employees, or the employer, not including information customarily obtained in the retail setting; or
  • Requires access to “confidential or proprietary information that derives substantial value from secrecy.”

Under the revised UCPE, employers that adversely affect an individual’s employment based on credit history must follow the Federal Fair Credit Reporting Act’s adverse action process.  Employers must provide “a written copy of the information relied, the right to obtain and dispute such information, and such other information as may be required by law.”  Employers are no longer required to identify the specific items of credit history causing the adverse decision nor provide the individual the opportunity to explain the circumstances concerning their credit history.

 



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