Can Employers Ask About an Applicant's Criminal History?

Employers perform background checks for a number of reasons. Whether or not it’s for a valid reason, an applicant’s background check can affect a candidate’s ability to get a job. But in Philadelphia, employers should be wary of digging into a candidate’s criminal history — it could be illegal.

In step with many states and cities across the country, the city of Philadelphia restricts an employer’s ability to ask job applicants about their criminal history.

The city’s Fair Criminal Record Screening Standards increases employment opportunities for candidates who have a criminal history. The ordinance ensures they get a fair shake by being judged by their resume and interview rather than their time served.

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees who work in the city. Under the law, employers can’t consider (or ask about) any arrest that didn’t lead to a conviction.

Also, employers can’t ask about any criminal convictions during the application process or during an initial interview.

After the initial interview, employers are allowed to ask about an applicant’s criminal history — but only convictions. They still can’t poke their noses into a candidate’s arrest history.

If they decide to go ahead and snoop, they might be looking at a fine of up to $2,000 per violation.

Employers who operate within the city of Philly should check for any questions on an applicant’s criminal history and remove them. This is especially needed if you’re using standard forms that were drafted before the FCRSS was passed.

For employers who have fewer than 10 employees, it might not be a bad idea to also reduce your use of criminal background checks during the hiring process. The EEOC discourages employers from considering an applicant’s arrest records. In fact, a study conducted by Carnegie Mellon showed that the cost might outweigh the benefit. The study found that convictions older than five years weren’t indicative of future behavior.

If you’re an job applicant or an employer who isn’t sure whether a question is prying too far into a candidate’s criminal history, you might want to consult an experienced Philadelphia employment law attorney.

Related Resources:

• Performing an Employee Background Check (FindLaw)
• Can an Employer Use Your Criminal Record? (FindLaw’s Law and Daily Life)
• Background Checks Do’s and Don’t's (FindLaw’s Free Enterprise)
• Get Affordable Attorney Access With a Legal Plan From LegalStreet (LegalStreet.com)
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