The New Year has come and gone and like well-intentioned gym memberships, gift-related credit card bills and too many glasses of eggnog at holiday parties, the following items will haunt Philadelphia employers well into the New Year unless you take action!

Action Item #1 – Getting Rid of the Box 

If your job application includes a criminal conviction checkbox, revise it, and revise your interviewing policies while you are at it. On December 10, 2015, then-Mayor Nutter signed into effect changes to the Philadelphia Ban the Box Ordinance.  Starting March 14, 2016, Ban the Box will apply to all private Philadelphia employers regardless of size, and employers cannot conduct a background check on a job applicant until after a conditional offer of employment is made. Convictions older than seven years cannot be considered, and to the extent you choose not to hire an applicant based on their past criminal conviction, that conviction must be job-related.

What does that mean?  In most cases, it means you cannot reject a job applicant based on their prior conviction alone. You must assess whether: 1) the nature of the offense, 2) the time that has passed since the offense, 3) the applicant’s employment before incarceration, 4) the job duties, 5) the applicant’s employment references, and 6) any evidence of rehabilitation would weigh in favor of offering the position to the candidate despite the conviction.

If you consider the factors and still rescind a job offer due to the conviction, you must inform the applicant in writing. The applicant has ten days to challenge your report or provide an explanation. If you do not comply with these new requirements, the applicant has 300 days – just shy of a year – to complain about you to the Philadelphia Commission on Human Relations, and also can sue you civilly after exhausting administrative options.  Remedies include a cease and desist order, injunction/equitable relief, compensatory damages, punitive damages up to $2,000 per violation, and attorney’s fees.

The ordinance also requires some office redecorating:  In the coming weeks the Commission will provide a notice for you to put in a conspicuous place in the office explaining the ordinance. Keep your eyes peeled for it.

Action Item #2 – Economic Growth Through Paid Summer Interns

I know what you are thinking: Summer interns, already?  Despite what it looks like outside, summer will be here before you know it.  Competitive applicants have already begun their summer internship search! Even if you are not ready to receive a coffee invitation from that MBA student you met at a holiday party, you do not want to miss out on your opportunity to recruit talented interns.  The Greater Philadelphia Chamber of Commerce, in tandem with other organizations, has a summer internship program designed to encourage area businesses to provide paid summer opportunities to local youth.  This is a significant part of the Chamber’s Roadmap for Growth. However, many businesses also rely on unpaid interns. If your business falls in that category, in the coming weeks, you should audit your unpaid internship program to ensure it is not really a job wearing internship clothing.

Unpaid interns come with energy, innovative ideas and great benefits to for-profit and non-profit organizations alike.  Just beware: under the law the question is not what can interns do for you, but what can you do for your interns?  Former unpaid interns are making headlines by suing the organizations which provided their unpaid internship experiences. The courts in these cases look at the question of “who is the primary beneficiary” in those relationships – hint– it better not be you. Your unpaid intern should not displace a paid worker, your intern should not expect compensation (or a job offer), the internship should provide some training to the intern and/or complement their course of study, and the internship should be for a limited and defined period of time.

Action Item #3 – Overtime Eligibility And The White Collar Worker

Starting in late 2016, you may have to pay overtime to certain salaried employees.  Under current DOL regulations, some classes of white collar employees (professional, administrative, executive, outside sales and computer professionals) can be exempt from minimum wage and overtime pay if the employer satisfies a three part regulatory test.

On June 30, 2015, the U.S. Department of Labor (“DOL”) published a new proposed rule regarding minimum wage and overtime requirements for professional “white collar” employees.  In a move that could impact up to 5 million U.S. workers, the salary floor in the three part test was raised from $23,660 annually to $50,400 annually. This is a significant increase under the regulation, and has the potential to require overtime pay for workers who were previously exempt under the regulations.  The DOL closed its comment period on September 5, 2015, and some 293,370 comments were submitted by the count on the Regulations.Gov website.  The DOL is currently in the process of reviewing the comments and finalizing its proposed rule.  While there is no concrete date for when the final rule will go into effect, the estimated date is in late 2016.  Employers should budget accordingly, and be prepared to re-evaluate the responsibilities of its employees and make sure that an employee’s job description matches their duties and pay grade.  Click here if you have any specific questions about the test in the proposed rule.

Unlike those well-intentioned resolutions, make sure to check ours twice to make sure nothing falls between the cracks in the coming year.

If you have questions about these or other employment related issues, please contact Elizabeth A. Livingston at 215-501-7845 or or Christine E. Weller at 215-732-3925 or

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