Quick Hits
- Employers doing business in Philadelphia will want to be aware of several key employment-specific ordinances—including laws governing fair criminal record screening standards (“ban the box”), sick leave benefits, predictive scheduling, pre-employment drug testing, and transit benefits—that provide rights and protections for employees and compliance responsibilities for employers in the city.
- Philadelphia’s “Promoting Healthy Families and Workplaces” ordinance, for example, requires that employers allow eligible employees to accrue sick leave for qualifying purposes.
- The Philadelphia Code generally prohibits employers from conducting pre-employment drug testing for marijuana for applicants who will work in Philadelphia.
Promoting Healthy Families and Workplaces (a/k/a Paid Sick Leave) (Chapter 9-4100)
Any employer with ten or more employees in Philadelphia, as defined by the Promoting Healthy Families and Workplaces ordinance, must provide paid sick time to their employees. “Employee” is defined as “any individual employed by an employer who performs work within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year,” so employees working remotely from Philadelphia are included. Employees in Philadelphia not entitled to paid sick time (e.g., because their employers have fewer than ten employees in Philadelphia) are entitled to unpaid sick time in accordance with the ordinance. Employees accrue a minimum of one hour of sick time for every 40 hours they work, with a maximum forty hours of sick time accrued per year. Alternatively, employers may choose to frontload, or advance, a lump sum of at least forty hours of sick time to employees at the beginning of each year. Employees are “entitled to use accrued sick time beginning on the 90th calendar day following [the] commencement of their employment.” Employees may carry over unused, accrued sick time from year to year (but remain subject to the forty-hour cap). However, this sick time need not be paid out upon the employee’s “termination, resignation, retirement, or other separation from employment.”
Accrued sick time may be used for a variety of reasons: mental or physical illness; medical diagnosis, care, or treatment; preventive care; care of a family member; and absences due to domestic abuse, sexual assault, or stalking.
When an employee seeks to use accrued sick time for absences related to his, her, or a family member’s domestic abuse, sexual assault, or stalking, the employee may use accrued sick time to seek medical attention, services from a victim services organization, psychological counseling, relocation, or legal services including preparing for or participating in any civil or criminal legal proceedings.
Fair Workweek Employment Standards (Chapter 9-4600)
The Fair Workweek Employment Standards ordinance entitles employees of retail establishments, hospitality establishments, or food services establishments with 250 or more employees and thirty or more locations worldwide to a “written, good faith estimate of the employee’s work schedule.” When employers initiate changes to the work schedule after providing advance notice of scheduling, they must pay “Predictability Pay” to employees. Employers must pay “one hour of Predictability Pay at the employee’s regular rate of pay” when they add time to a work shift or change the date, time, or location of the shift with no loss of hours. Employers must pay at least one-half times the employee’s regular rate of pay per hour when the employer either subtracts hours from a regular or on-call shift, or a regular or on-call shift is canceled. Employers, however, are not required to pay Predictability Pay when the employee requests the shift change, the shift change is mutually agreed upon, or circumstances outside the employer’s control prevent regularly scheduled shifts from taking place.
Prohibition on Testing for Marijuana as a Condition for Employment (Chapter 9-5500)
Philadelphia prohibits employers from requiring a prospective employee to submit to testing for the presence of marijuana as a condition of employment. Four categories of jobs are exempt from the ban: (1) law enforcement officials; (2) positions requiring a commercial driver’s license; (3) positions requiring the supervision or care of children, medical patients, or disabled or other vulnerable individuals; and (4) “[a]ny position in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency.” Furthermore, the prohibition on pre-employment marijuana testing ordinance does not supersede federal or state statutes, regulations, or orders that require “drug testing of prospective employees for purposes of safety or security”; “[a]ny contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant”; or “a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of … applicants.”
Fair Criminal Record Screening Standards (a/k/a Ban the Box) (Chapter 9-3500)
Philadelphia’s ban-the-box ordinance broadly prohibits employers in Philadelphia from inquiring into or taking “any adverse action against any person” based on prior arrest or criminal accusations that did not result in a conviction. It further prohibits employers from taking adverse action against current employees based on pending criminal charges unless the pending criminal charge “bears such relationship” to the employee’s duties.
The ordinance also prohibits employers from inquiring into or requiring any person to disclose any criminal convictions, except as required by federal or state law.
Although employers are permitted to run criminal background checks as part of the hiring process, no employer can maintain a blanket “policy of automatically excluding any Applicant or Employee with a criminal conviction from a job or class of jobs.” Instead, employers may reject an applicant or employee based on criminal record only if the “record includes conviction for an offense that did not later result in exoneration”; the conviction is related to the employment such that the employer “may reasonably conclude that the Applicant or Employee would present an unacceptable risk to the operation of the business or to co-workers or customers”; and the “exclusion of the Applicant or Employee is compelled by business necessity.”
It is the employer’s responsibility to conduct an individualized assessment of risk based on:
(a) The nature of the offense;
(b) The time that has passed since the offense;
(c) The Applicant’s or Employee’s employment history before and after the offense and any period of incarceration;
(d) The particular duties of the job being sought;
(e) Any character or employment references provided by the Applicant or Employee; and
(f) Any evidence of the Applicant’s or Employee’s rehabilitation since the conviction.
The Fair Criminal Record Screening Standards ordinance operates with stronger effect for those applicants or employees whose convictions are limited to juvenile offenses. It is unlawful for employers to take any adverse action against a person on the basis of his or her juvenile record. Employers are further prohibited from requiring a person to “disclose or reveal any item or information in the person’s juvenile record.” The individualized risk assessment for adult offenders is absent from this provision.
Employee Commuter Transit Benefit Programs (Chapter 9-6000)
The Employee Commuter Transit Benefit Programs ordinance entitles certain employees working within the geographic boundaries of Philadelphia to commuter benefits. A “covered employer” is any “individual, co-partnership, association, corporation, or any other entity, who or that employs fifty (50) or more [nongovernmental] Covered Employees, for compensation.” A “covered employee” is “[a]ny person who performed an average of at least thirty (30) hours of work per week, for compensation, within the geographic boundaries of Philadelphia for the same employer within the previous twelve (12) months.”
Covered employers must make one of two benefit plans available for their covered employees. Covered employers may also combine the programs. The first benefit program is an elective “pre-tax, payroll deduction” for mass transit expenses. Mass transit expenses are those incurred for a fare instrument, such as a mass transit smart card or bus token, or transportation in a commuter highway vehicle to travel between the covered employee’s residence and workplace.
Alternatively, a covered employer may elect to supply a covered employee with a fare instrument for the employee’s mass transit expenses “at benefit levels at least equal to the maximum amount that may be deducted for such programs” pursuant to federal tax code requirements for employee fringe benefits.
Ogletree Deakins’ Philadelphia office will continue to monitor developments related to Philadelphia’s employment-related laws and will provide updates on the Pennsylvania blog as additional information becomes available.
Further information is available on the Ogletree Deakins Client Portal in the updated law summaries for Paid Sick Leave, Predictive Scheduling, Drug Testing Marijuana, Background Checks (Timing – Criminal), and Hiring (Ban the Box) in Philadelphia, Pennsylvania. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.
Janice G. Dubler is a shareholder in the Philadelphia office of Ogletree Deakins, and she is co-chair of the firm’s Healthcare Industry Group.
Brandon R. Sher is a shareholder in the Philadelphia office of Ogletree Deakins.
Sarah R. Shaiman is a law student currently participating in the summer associate program in the Philadelphia office of Ogletree Deakins.
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