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At a Glance
- Philadelphia has clarified and again expanded its existing
“fair chance” ordinance, the Fair Criminal Record
Screening Standards Ordinance. - Employers and businesses operating in the city that screen
applicants must update their notices to applicants, employees, and
contractors for required changes. - Changes take effect January 6, 2026.
On October 8, 2025, with the mayor’s signature,
Philadelphia, Pennsylvania enacted additional amendments to its Fair Criminal Record
Screening Standards Ordinance (FCRSSO). The amendments continue
the city’s trend of expanding protections for individuals with
criminal records, and take effect January 6, 2026.1
Businesses operating in Philadelphia must revise required notices
to applicants, employees, and independent contractors, among other
compliance updates.
Existing Obligations Summarized
Pennsylvania law already limits employers’ consideration of
criminal records to only job-related misdemeanor and felonies, and
prohibits the use of certain defined “criminal history
record” information, such as “limited access” or
expunged records, in hiring decisions.2
Philadelphia’s FCRSSO has long required businesses to conduct
an individualized assessment of criminal records before adverse
actions, mandated notice requirements, and afforded a private right
of action for damages. The new amendments clarify and expand these
obligations.
Clarifying Provisions
The amendments clarify drafting ambiguities previously present
in the FCRSSO, such as:
- “Felony,” “Misdemeanor,” “Summary
Offense” and “Incarceration” are now specifically
defined terms. - Existing law prohibits “adverse action” based on
non-pending criminal charges that did not result in a conviction.
The amendments substantially broaden the definition of
“adverse action.” - Existing law allows notice “during the Employment
Process” of the intent to conduct background checks. The
amendments clarify that this includes statements made in “job
advertisements,” which are broadly defined, and require any
such statements, if made, to include notice that an individualized
assessment will take place. - Existing law requires consideration of rehabilitation efforts
during the individualized assessment process, but the amendments
include specific illustrative examples of what may constitute
rehabilitation, such as completion of treatment or educational
programs. - Existing law prohibits consideration of criminal records over
seven years old unless the individual was released from
incarceration in the last seven years. The amendments provide a
narrow definition of “incarceration” that can be used to
extend the consideration timeframe. - Existing law requires businesses to allow individuals 10
business days to submit evidence criminal records were inaccurate
or to provide an explanation of the offenses. The prior wording of
the law, read literally, suggested that the business only needed to
provide this opportunity after it had already communicated
its final adverse decision. The amendments clarify the business
must provide this opportunity before a final adverse
decision is made.3
Expanded Obligations
The amendments also expand obligations and further
restrict consideration of criminal records (unless otherwise
required by state or federal law) as follows:
- Businesses must not consider any misdemeanor conviction over
four years old, excluding any periods of
incarceration. - Businesses must not consider any summary offenses
(Pennsylvania’s lowest level of offense). - Businesses must disregard records they know are sealed or
expunged and allow individuals to submit evidence of sealing or
expungement if such records nevertheless appear in motor vehicle
reports. However, the amendments do not define what would
constitute sufficient evidence presented by the individual in this
scenario that would require the business to treat the offense as
off-limits.4 - Before taking adverse action based on a criminal
record, businesses must provide: (i) a summary of rights under the
FCRSSO; (ii) a statement that the business will consider evidence
of any error, rehabilitation or mitigation; and (iii) instructions
on how the individual can provide this information directly to
the business. The amendments contemplate that the Philadelphia
Commission on Human Relations may create sample forms for
compliance but does not provide a strict deadline for the
Commission to do so. - When an individual files a complaint with the Philadelphia
Commission on Human Relations under the FCRSSO, the business must
respond with specifically enumerated information explaining its
decision. - The amendments add protections against retaliation.
Recommendations
The Philadelphia amendments impact each stage of consideration
and use of criminal records and require careful attention.
“50-state” background screening compliance continues to
be a headache for businesses (and background screening companies
that often assist with administrative tasks related to compliance)
with substantial new and unique jurisdictional requirements every
year.5
Businesses with operations in Philadelphia should evaluate
necessary changes to when and how they inquire into criminal
history during the hiring or independent contractor engagement
process. They should also consider whether to undertake a broader
(and privileged) assessment to strengthen their compliance with
federal, state, and local employment laws that regulate use of a
criminal history (including in Philadelphia).
Suggested action items for businesses with employees or
independent contractors in Philadelphia and other jurisdictions
with “fair chance” laws are as follows:
- Review and update job applications and related forms for
impermissible inquiries regarding criminal records; - Review and update workplace postings to help ensure all
required postings are included; - Review and update company webpages for necessary additions
about fair chance hiring; - Provide training to recruiters and other personnel involved in
posting job openings or contract opportunities; - Provide training to personnel who conduct interviews and make
or influence hiring and staffing decisions to explain permissible
inquiries into, and uses of, criminal history; - Provide training to personnel involved in ordering and
adjudicating background reports; - Review written and electronic communications about the hiring
process, including conditional offer templates and pre-adverse
action and adverse action notices; and - Review the hiring and screening process to help ensure
compliance, including the timing of background checks, the
distribution of mandatory notices, and the application of mandatory
deferral periods.
Footnotes
1 See Phila. Code 9-3500 et seq.; William J. Simmons and
Haley Norwillo, New Pennsylvania Legislation and Philadelphia
Ordinance Amendment Tackle Pardoned Convictions, Expunged Records,
and Negligent Hiring Liability, Littler ASAP (Jan. 4,
2024); Rod M. Fliegel, William J. Simmons and Wendy Buckingham; Philadelphia Enacts Amendments to and Expands
Coverage of its Background Screening Ordinances, Littler
ASAP (Jan. 26, 2021); Thomas Benjamin Huggett and William Simmons,
Philadelphia Criminal Background Checks
– Fair Chance Hiring Law Poster, Littler ASAP (Mar.
15, 2016); William Simmons and Thomas Benjamin Huggett, Beyond “Ban the Box” –
Philadelphia Makes Sweeping Changes to Criminal Records Screening
Ordinance, Littler ASAP (Dec. 16, 2015).
2 See 18 Pa.C.S. 9122.5; 9125.
3 Employers will already be familiar with the nationwide
“pre-adverse action” requirements under the Fair Credit
Reporting Act, including providing a copy of the consumer report
and summary of federal rights before taking adverse action based
even in part on the report. Now additional information will be
required at this stage specifically in Philadelphia, and for use of
any criminal record information, even if not obtained from a
“consumer report.”
4 Although a sealing or expungement order may be entered
in a case, the records are not always cleansed from all public
record sources. The city council seems to have been especially
concerned about motor vehicle records still reporting the
offenses.
5 For examples of new or amended laws just this calendar
year: Rod M. Fliegel and Rachel E. Simons, California Civil Rights Department (CRD) Ramps
Up Enforcement of the California Fair Chance Act (CFCA),
Littler ASAP (Aug. 18, 2025); Steven Kaplan and Brad Tobias, Prince
George’s County, MD Amends Criminal Background Check
Law, Littler ASAP (Oct. 1, 2024); Kurt Erickson and Joe
St. James, Minneapolis, Minnesota Amends its
Anti-discrimination Ordinance, Littler ASAP (May 15,
2025); Rod Fliegel and Chad Kaldor, Washington’s Amended Fair Chance Act Will
Impose Additional Obligations on Covered Employers,
Littler ASAP (Apr. 23, 2025).
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