Philadelphia’s Fair Criminal Records Screening Standards Ordinance (FCRSSO), commonly known as its “ban the box” law, has regulated how and under what circumstances an employer can consider the criminal histories of its applicants and employees since its enactment in 2011. Philadelphia City Council, with the Mayor’s approval, has now amended the FCRSSO, effective January 6, 2026, presenting the need for employers to review and potentially update their criminal history screening procedures to comply with the law’s new requirements.
What’s New?
Expanded and Added Definitions
With this amendment, Philadelphia expands upon several of the definitions included in the FCRSSO through both clarification of existing terms and the addition of previously undefined terms. For example, the amendment defines “incarceration” — a term that is important for determining the conviction lookback period — to limit it to “confinement in a jail or prison” not “parole, home confinement, or residence at a treatment facility or residential program.”
The amendment also adds a broad definition for “Job Advertisement” — which is important because of limitations that the FCRSSO puts on what an employer can state in advertising for a job — to mean “any solicitation, advertisement, or publication made to communicate with applicants” about employment opportunities.
The amendment also arguably broadens what constitutes an Adverse Action for which an employee or applicant can seek relief under the FCRSSO. For example, an Adverse Action under the amendment will include “excessive and unreasonable levels of supervision” meaning “supervision that is different from other similarly situated employees not justified by a reasonable, individualized assessment of the specific risks posed by an employee’s criminal history or conduct.”
Limitations on How Employers can Consider Offenses
Where the current version of the FCRSSO allows broad consideration of conviction records not older than seven years from the date of inquiry (not counting periods of incarceration), the amendment places new limits on this. Now, the period for which employers may consider a misdemeanor offense is four years after the date of conviction or release from incarceration, whichever is later. The time period for consideration of felonies remains seven years, however.
Additionally, employers may not consider conviction records for summary offenses nor those that have been expunged or sealed. If an expunged or sealed conviction appears on an applicant or employee’s driving record, the employer must give that person an opportunity to provide evidence of the expungement or sealing.
Under the amendment, largely as before, an employer may only exclude an employee or applicant if, based on the available information and consideration of the listed assessment factors, “a reasonable person would conclude that employing the applicant or employee would pose a specific unacceptable risk” to the operation of the business, customers or coworkers. This individualized assessment must consider the existing assessment factors in addition to added ones.
However, the amendment now defines evidence of rehabilitation — one of the factors to be considered — to include a non-exhaustive list of credible information showing the following: “(.1) Completion of a mental health or substance use disorder treatment program; (.2) Completion of a job training program; (.3) Completion of a GED or post-secondary education program; (.4) Service to the community; (.5) Work history in a related field since the time of conviction or incarceration. (.6) Active occupational licensure, commercial driver licensure, or other licensure necessary to perform the specific duties of the job.”
Where an employer decides to give notice to an applicant, including in a job advertisement, of its intent to conduct a criminal background check, the notice must state that any consideration of the background check will be an individualized assessment based on the employee or applicant’s specific record and the specifics of the job.
Lastly, if an employer intends to reject an applicant or employee based on criminal record information, it must provide them with notice of that provisional decision including the specific conditions considered along with a copy of the criminal record used. The provided notice must include a summary of the applicant or employee’s rights under the ordinance, a statement that the employer will consider evidence of any errors in the records and evidence of rehabilitation or mitigation, including a list of the types of evidence considered under the ordinance and instructions on how to exercise the right to provide evidence.
Retaliation and Remedies
The FCRSSO amendment also adds a new anti-retaliation provision that makes it unlawful to “interfere with, restrain, deny the exercise of, or the attempt to exercise, any rights set forth in this [ordinance], or to retaliate against an employee for exercising any protected rights.”
Importantly, subject to limited exceptions, the amendment establishes a rebuttable presumption of retaliation where an employer “discharges, suspends, demotes, or takes other adverse action against a person” within 90 days of exercising any rights under the ordinance, including providing information for the employer’s individualized assessment. The presumption may be rebutted upon a showing by a preponderance of evidence that adverse action was taken for just cause and would have been done notwithstanding the protected activity.
Finally, the amendment allows for liquidated damages in an amount equal to the other monetary damages owed as determined by the Commission on Human Relations.
What Should Employers be Doing?
Employers who hire or operate in Philadelphia should review, and where necessary, update their hiring, promotion and background check procedures to ensure that they comply with the amended FCRSSO. Employers should take care to ensure they are equipped to meet new procedural requirements such as the amended notice requirements. Additionally, employment decisions should be carefully reviewed and documented where there is a risk of triggering the added rebuttable presumption of retaliation. Human resources and other relevant personnel should also receive training on compliance with the amended requirements before they take effect in early 2026.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.