Applies to: All Employers with Employees in Philadelphia, PA
Effective: January 6, 2026
Quick Look
- The Fair Criminal Record Screening Standards Ordinance to expand employee protections and employer requirements as of January 6, 2026.
- The contents of the required advance notice, individualized assessment, and adverse action processes have been expanded.
- The types of criminal history information that may be considered have also been expanded.
- Employers are prohibited from retaliating against an individual enforcing their rights.
- Employers may now be liable for liquidated damages for violations of the Ordinance.
DISCUSSION
Philadelphia Bill No. 250373-A will amend the Fair Criminal Record Screening Standards Ordinance to expand employee protections and employer requirements as of January 6, 2026. Generally, an employer cannot inquire into an applicant’s criminal history until after a conditional offer of employment. The following summarizes the recent updates.
DEFINITIONS
The definitions of conviction and inquiry have been expanded; and the definitions of felony, misdemeanor, summary offense, incarceration, job advertisement, adverse action, and excessive and unreasonable levels of supervision have been added.
Notably, any criminal record inquiry through public or government records or internet searches, either by or on behalf of an employer, is specifically subject to the Ordinance. Job advertisement is defined to mean any verbal or written communication of potential employment. Adverse action means any action that negatively affects an applicant or employee’s compensation, terms, or condition of current or future work or is intended to harass an applicant or employee in connection with work, including excessive and unreasonable levels of supervision, refusal to hire or promote, blacklisting, interferences with current employment or employment prospects, contacting law enforcement or a government agency to file a report, including reporting suspected or actual immigration status.
ADVANCE NOTICE
An employer may provide applicants and employees notice of its intent to conduct a criminal background screen, including in job advertisements, which is required to have certain information in it. The bill expands the notice requirements to include a statement 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.
INDIVIDUALIZED ASSESSMENT
An employer may take adverse action following an individualized assessment of the criminal history results. The bill expands the individualized assessment process to prohibit taking adverse action unless it is determined that 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 factfinder. Among the previously stated factors for consideration in the individualized assessment process, the bill expands the definition of evidence of rehabilitation that may be considered.
CRIMINAL RECORD
The bill also expands what may and may not be considered in an individual’s criminal record for purposes of employment evaluation. The seven-year lookback period will now be determined by the timing of the underlying arrest or the release from incarceration for such conviction, whichever is later. Misdemeanor convictions may be considered if occurring within less than four years of the underlying arrest or release from incarceration for the conviction, whichever is later.
An employer cannot consider a conviction record that has been expunged, sealed, or otherwise cannot be used, whether the record appears on a criminal background check, a Driver Record issued by the Pennsylvania Department of Transportation, or any other source. The individual must be given the opportunity to provide evidence of expungement or sealing.
ADVERSE ACTION
The adverse action process will be expanded. The employer must provide a preliminary notice of intent to deny a job application along with a notice of rights; a statement that the employer will consider evidence of any error in the criminal history records and evidence of rehabilitation and mitigation, including a list of the types of evidence that may be offered; and instruction on how to submit evidence or explanation to the employer. The applicant will still have 10 business days to provide evidence of an error or rehabilitation, but that timing must be observed before the employer may issue a final determination.
RETALIATION
A new section on prohibited retaliation has been added to the Ordinance. Specifically, employers are prohibited from retaliating against an applicant or employee for exercising their rights, and retaliation is presumed if adverse action is taken within 90 days of when that person engaged in the exercise of rights, unless the employer acts in good faith to comply with the law and moves forward with adverse action after considering additional information submitted by the individual, if the adverse action is based on legitimate business concerns that are not related to the criminal history, or when addressing an employee’s pending criminal charge as permitted in the Ordinance.
ENFORCEMENT
The enforcement process has been further detailed on information required to be provided to the Commission when a claim has been made. Employers may also be subject to liquidated damages to make the individual “whole” as a result of a violation.
ACTION ITEMS
- Review the Ordinance here.
- Update background check policies and procedures for compliance.
- Have appropriate personnel trained on the requirements.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that OneDigital is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 OneDigital
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