Prior Criminal Convictions as a Bar to Employment

Can an Employer use a person’s prior criminal convictions as a bar to employment?  The answer to that question requires further thought.  In some situations, an Employer can use a person’s prior conviction as a bar to employment.  However, in some situations, the Employer is not allowed to.  The reason an Employer is allowed to consider prior convictions in certain circumstances is because of the Pennsylvania Criminal History Record Information Act Handbook (“CHRIA”), also found at 18 Pa. C.S.A. §9101 et seq.

A preliminary background of CHRIA shows that Chapter 91 of the Crimes Code of Pennsylvania and Pennsylvania Consolidated Statutes Annotated was adopted in January of 1980.  The purpose of this Act is to protect criminal history information for all persons in the Commonwealth of Pennsylvania.  This Act says when an Employer may or may not bar employment to a person when such person has a prior criminal background.

18 Pa. C.S.A. §9125 is the Section that allows Employers to use a person’s criminal record information in the hiring process. Section 9125 specifically states:

Felony and misdemeanor convictions may be considered only to the extent to which they relate to the applicant(s) suitability for employment in the position for which he has applied.

Id. (emphasis added)

The key to Section 9125 is that a prior conviction may only be considered to the extent to which it “relates to the applicant’s suitability for employment.”  Id.   Therefore, the prior convictions have to relate to the applicant’s ability to perform the specific job/position to which he/she has applied.  To illustrate, my firm recently filed two employment discrimination cases (Ripley v. Sodexo and Gaston et al v. Sodexo) in the United States District Court for the Western District of Pennsylvania alleging that the Defendant’s use of the Plaintiffs’ prior convictions as the main factor for termination was improper.   In those two cases, the Plaintiffs’ prior convictions (from over 10-30 years ago) did not relate to their suitability to perform their jobs in the food industry, which is why our firm filed employment discrimination suit alleging violation of CHRIA.

However, it is also important to note that there are certain situations where Section 9125 doesn’t factor into an Employer’s decision to refuse employment to a person with prior convictions.  In some professions, an Employer is legally prohibited by law from hiring persons with certain offenses.  CHRIA does not even factor into an Employer’s decision whether to hire a potential applicant.

For example, aircraft/airport positions (including those with direct access to airplane or secure airport areas) have restrictions.  Under 49 U.S.C. §44936, an Employer MAY NOT hire individuals for the above positions if:

The individual, within the last ten (10) years, has been convicted of federal hijacking or other air crimes, murder, assault with intent to murder, espionage, treason, sedition, kidnapping, rape, extortion, armed robbery, weapons convictions, distribution (or intent to distribute) a controlled substance, of felonies involving: a threat, willful destruction of property, information or manufacture of a controlled substance, burglary, theft/fraud, possession or distribution of stolen property, aggravated assault, bribery, or illegal possession of controlled substance punishable by a maximum term of imprisonment of more than one year.

Another example is a childcare position.  23 Pa. C.S.A §6344(c) states that an Employer MAY NOT hire an individual if:

The individual has founded child abuse reports within the last five (5) years or with convictions for homicide, aggravated assault, kidnapping, rape, various sex crimes, prostitution felonies, concealing death of child, endangering welfare of child, or pornography ever, or for drug felonies within the last five (5) years.

There are many more examples of professions where, regardless of how qualified an individual is, an Employer literally has their hands tied and cannot hire an individual because of prior convictions.  Other professions include, but are not limited to, bank employees, nursing home workers, police, port workers, school employees, etc.  These are examples where an Employer is legally bound by law to refuse employment.

However, if an Employer is not legally required to exclude an applicant and the Employer does exclude an applicant because of a prior conviction that has no bearing on the applicant’s ability to perform the job in question, the Employer may be facing an employment discrimination lawsuit in violation of CHRIA and various other employment statutes.

Michael Kraemer is a partner with Kraemer, Manes & Associates, a law firm headquartered in Pittsburgh, serving all of Pennsylvania, with attorneys focusing on business law, employment law, litigation, and civil issues. For more information please visit www.lawkm.com.

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