Ban The Box for Municipalities

Updated July 1, 2015 1

Municipality Restrictions on Criminal Records

There are a number of municipal or county entities with restrictions applicable to employers and landlords on the use of criminal records.

Below are explanations for extensive restrictions in place for the major cities of Seattle, Boston, Philadelphia, Madison, and Newark. This is followed by a list of major municipalities and counties with known “ban-the-box” restriction laws. Most cities and counties laws restrict only to city-hired employees and sometimes vendors hired by that city or county. But the list notes where the ban applies on private employers

Boston, MA: Employment

Boston Municipal Code §12-9.3 prohibits discrimination based upon “ex-offender” status. The exception to prohibition of the use of such information is if an employer shows a bona fide occupational qualification that will disqualify a person based upon this criminal record. However, an ex-offender status is limited to the following:

Ex-Offender status shall mean (i) the condition of having been arrested, detained, or accused of any violation of law which no conviction resulted, or (ii) a final conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or completion of any period of incarceration resulting therefrom, whichever date is later, occurred five (5) or more years prior to the date of the exercise of any right or privilege under this Chapter, unless such person has been convicted of any offense within five (5) years immediately preceding the exercise of any right or privilege under this Chapter.

This municipal ordinance basically tracks the restrictions found MGLA 151B §4(9), however the state statute only relates to the first conviction for drunkenness, simple assault, speeding, affray or disturbance of the peace. This is a slight difference in the language between the ordinance and the state’s statute that might make the Boston Ordinance more restrictive.

Dane County (Madison), WI: Employment

Employers in Madison have these restrictions pursuant to municipal code §39.03(8).

1. Employer may not require disclosure of an applicant’s SSN if disclosure is not required by law.
2. Employer may consider a pending charge if the charge is substantially job related.
3. Employer may consider convictions for felonies or misdemeanors within three (3) years of the disposition, parole, or release from confinement, if the conviction is substantially job related.
4. An employer may consider a criminal record if such affects the bondability of the employee required by state, local, or federal law or regulation, or “previously established business practice of the employer”.
5. Employer may consider a criminal record if it will affect the employees ability to obtain a license or permit to perform the job.
6. Employers engaged in private investigation and installing burglar alarms are exempted from the ordinance.

Restrictions on Use of Credit History:

1. Employer may not use credit information unless it is substantially job related or it is necessary to establish the bondability of an applicant or employee.

Updated July 1, 2015 2

Philadelphia, PA: Employment

Employers having ten (10) or more employees within the city of Philadelphia are subject to restrictions in regard to the use of criminal records. Chapter 9-3000 in the city code entitled: “Fair Criminal Records Screening Standards”. Portions 2 and 3 of the ordinance parallel 15 PACSA §9125 which restricts employer inquires regarding certain felony and misdemeanor convictions. (Note PA has a lesser level of convictions labeled “summary offenses” – whether an employer may consider summary offenses is uncertain).

Here are the basic provisions of this ordinance:

1. An employer may not require an applicant to disclose nor can an employer inquire about criminal records until after the first interview. If there is no interview in the hiring process, then there can be no inquiry into criminal records. However, if some other law requires such an inquiry, then the other specific law will apply. Further, there is no time limit on the age of the conviction, so the FCRA reporting principals will apply.
2. Employer cannot inquire of an applicant or employee about non-conviction records except for pending charges.
3. Employers cannot take adverse action against applicants or employees based upon non-convictions.

Seattle, WA: Employment

Effective November 1, 2013, the Seattle City Council extended an existing ban-the box policy on hiring city employees to also include private employees. The ordinance restricts employers from inquiring about an applicant’s criminal history until after the employer has identified qualified applicants. Before rejecting an applicant based solely on criminal history information, employers must consider all the circumstances, including mitigating factors such as the type of offense and duration of time since the underlying criminal conduct.

The law affects a new employee working at least 50 percent of the time in Seattle regardless of the employer’s location of their employer including those who employees who make business stops in Seattle as well as temporary and seasonal employees. Employees already subject to existing criminal background check processes under state or federal law are not affected.

Cities and Counties with Ban-the-Box Public Employment Laws

Most of the entities on this list have restrictions applicable only on applicants (or vendors) hired by that city or county. Restrictions beyond city or county employees are noted.