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Labor and Employment Updates

Labor and Employment Alert | November 14, 2011
By: Nancy Conrad and George C. Morrison

The Philadelphia Fair Criminal Record Screening Standards Ordinance is in Effect

The Philadelphia Fair Criminal Record Screening Standards Ordinance is now in effect.  As a result of the Ordinance, Philadelphia employers are prohibited from inquiring about criminal convictions on job applications and during a first interview.

Under the Ordinance, Philadelphia employers are limited in their ability to consider criminal convictions as part of the early stages of the application process.  Employers' obligations under state and federal law regarding all stages of the hiring process remain unchanged.  The Ordinance, however, makes it unlawful for city agencies and private employers of 10 or more in the City of Philadelphia to:

  • Make an inquiry about, or require a person to, disclose any criminal conviction during the application process or before and during the first interview;
  • Make an inquiry about, or require a person to, disclose or reveal any arrest or criminal accusation, not then pending, which did not result in a conviction;
  • Take any adverse action against a person on the basis of any arrest or criminal accusation, not then pending, which did not result in a conviction.

The City is actively enforcing the Ordinance.  Employers should review their hiring policies and procedures to ensure substantial compliance with the Ordinance.

The Pennsylvania Commonwealth Court Provides Guidance on Independent Contractor Status

The Commonwealth Court recently issued a decision in Kurbatov v. Dep’t of Labor and Industry, Office of Unemployment Compensation, Tax Services providing further guidance on issues related to the classification of workers as independent contractors.  The Court found that a construction company improperly classified workers that installed exterior insulation for commercial properties as independent contractors.  

The Court emphasized that under the Unemployment Compensation Law, it is presumed that an individual who performs services for wages is an employee.  To overcome this presumption, the employer must show:

  • The worker performed his job free from the employer’s control and direction. The Court noted that the employer’s establishment of work hours and providing work tools are strong indications of an employer-employee relationship; and
  • The worker, operating as an independent tradesman, professional or businessman, did or could perform the work for others, not just the employer. 

The Court affirmed a determination by the Office of Unemployment Tax Services to assess Kurbatov $35,936.85 for unpaid contributions, interest and penalties.  The Court specifically determined that Kurbatov exercised a sufficient amount of control over the workers, including providing equipment and setting work hours, to support a finding of an employer-employee relationship. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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