The court specifically noted that covered facilities should not be required to hire people with a criminal record, but they should have the opportunity to do so after assessing the situation and exercising their discretion to employ an applicant if appropriate.
The Pennsylvania Commonwealth Court recently declared a provision in the Older Adults Protective Services Act (“the Act”) that prohibits persons convicted of a list of enumerated crimes to be employed in the care of older adults (including in an adult daily living center, a nursing home facility, through a home health agency or in another covered facility under the Act) to be unconstitutional and, therefore, unenforceable.
The Act provided that a covered facility may not hire an applicant or retain an employee if the individual was ever convicted of one or more of a long list of offenses. They included both violent offenses, such as criminal homicide and rape, and non-violent offenses, such as forgery and misdemeanor theft and theft-related offenses.
The Act required covered facilities to refrain from hiring individuals with any of the above-listed convictions and also required covered facilities to terminate the employment of anyone who had been employed for less than one year prior to the effective date of the law who had any of the above-listed convictions. The ban on employment of individuals with one of the above-listed convictions was both lifetime and automatic—regardless of how long ago the conviction occurred or how related the conviction was to the job.
In its analysis, the court cited to the Equal Employment Opportunity Commission’s (“EEOC”) 2012 guidance regarding criminal history employment exclusions and the racial disparate impact that such exclusions have, noting the EEOC’s recommendation that prospective employers assess employment eligibility by considering the nature of the crime, the time elapsed and the nature and requirements of the particular job. The court also laid out stories of the individual petitioners, which illustrate why lifetime automatic bans on hiring based on certain convictions are disfavored. For example, one of the petitioners rode with friends in a stolen vehicle when he was 18 years old, 34 years before the court’s decision. That single “brush with the law” precluded him from obtaining employment in a covered facility.
In holding that the lifetime automatic ban on employment covered by the Act for individuals with any of the above-listed convictions is unconstitutional, the court reasoned that a reasonable alternative means for protecting older adults is available—covered facilities can perform an individualized risk assessment and evaluate applicants with criminal records on a case-by-case basis. The court specifically noted that covered facilities should not be required to hire people with a criminal record, but they should have the opportunity to do so after assessing the situation and exercising their discretion to employ an applicant if appropriate. Therefore, the lifetime automatic ban on employment of individuals with the above-listed criminal convictions was declared unconstitutional and unenforceable by the court, and the Commonwealth of Pennsylvania is now enjoined from enforcing such a ban.
What This Means for Employers
Employers covered by the Act are no longer required by law to disqualify automatically candidates due to a criminal conviction enumerated in the statute. Further, the court’s analysis in its decision serves as a reminder that employers should be aware of the risks of automatically disqualifying candidates due to a criminal conviction and should instead consider each candidate’s criminal history on a case-by-case basis. Such risks include claims of race or national origin discrimination on either a disparate treatment or disparate impact theory. In addition, an employer obtaining a criminal background check should be careful not to run afoul of the requirements of the Fair Credit Reporting Act (“FCRA”) and other similar state-mandated requirements if a consumer reporting agency is engaged to obtain such a report and the employer does not follow the requirements of the FCRA (including, for example, applicant consent, statutory disclosures, provision of a copy of the report, pre-adverse action letter and time to address misinformation).
This decision represents yet another newsworthy event in the already rapidly changing area of the law relating to hiring practices and the use of criminal convictions in them. For other recent news, see our recent Alert regarding the amendments to the Philadelphia Ban the Box Ordinance. We have also reported on other Ban the Box laws, including in San Francisco, Massachusetts, New Jersey and New York.
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