One of the critical factors for employers to understand regarding background checks is that the legal status quo may not remain the status quo. Background screening laws shift regularly, whether because new legislation passes or because old laws are revisited and changed. In this post, we will look at recent legal changes in background checks in Philadelphia and Illinois to give employers a better sense of how background screening laws can transform over time.
In Philadelphia, Mayor Jim Kenney recently signed a trio of bills that amend the city’s Fair Criminal Record Screening Standards (FCRSS) and its ordinances banning credit checks.
In place since 2016, the FCRSS is an ordinance that makes it illegal for any employer in the city to ask about a candidate’s criminal history or run a criminal background check until after they make a conditional offer of employment. The FCRSS expands the protections already put in place nationally thanks to the Fair Credit Reporting Act (FCRA).
The amendments to the ordinance extend protections to independent contractors, rideshare drivers, and all gig economy workers. They also add exclusions that limit employers’ ability to dismiss or penalize existing employees based on criminal history information.
The new Philadelphia amendments also affect the city’s Fair Practices Ordinance. That ordinance already includes protections against Unlawful Credit Screening Practices in Employment (UCPE) that make it illegal for most employers to use credit history information to inform employment decisions.
As originally written, the UCPE exempted law enforcement agencies and financial institutions, which meant that employers in those sectors could choose not to hire someone based on poor credit. That blanket exemption has been eliminated by the new amendments, with more specific exemptions now put in its place.
For example, an employer hiring for a job that “requires significant financial responsibility to the employer, excluding jobs involving retail transactions” can use credit checks to inform that hiring decision. There are four other exemptions along these lines, including jobs requiring access to “confidential or proprietary information or “sensitive financial information”; jobs that are “supervisory or managerial in nature and involve setting the direction or policies of the business”; and jobs that require “an employee to be bonded under city, state, or federal law.”
In Illinois, the state legislature recently voted in favor of Senate Bill 1480, which would significantly limit employers’ ability to make employment decisions based on criminal history information. The bill would require employers to demonstrate that either 1) there is a “substantial relationship between one or more of [the candidate’s] previous criminal offenses and the employment sought or held; or 2) that the “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
In making these determinations, employers would be required to consider six criteria:
- The length of time since the conviction
- The number of convictions that appear on the conviction record
- The nature and severity of the conviction and its relationship to the safety and security of others
- The facts or circumstances surrounding the conviction
- The age of the employee at the time of the conviction
- Evidence of rehabilitation efforts
At this time, Senate Bill 1480 is not law yet: provided that the governor does not veto the bill, it will go into effect this June.
Employers in Philadelphia and Illinois should take the time to review these legislative changes in detail to ensure that they are in compliance before the legislative changes go into effect.