In some employment situations, an Employer can use a person’s prior conviction as a bar to employment. In some employment situations, the Employer is not allowed to consider a person’s prior conviction. 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.
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. It is important to note that CHRIA deals with the hiring of employees. However, there are some situations where a person gains employment and then is subsequently terminated because a background check reveals a prior conviction. What happens in that situation?
Pennsylvania is an at-will employment state meaning an employee can be terminated for numerous reasons – even a prior criminal conviction. However, there is a case for wrongful discharge where discharges of at-will employees threaten clear mandates of public policy. The sources of public policy which may limit the employer’s right of discharge include: (1) legislation, (2) administrative rules, (3) regulation or decision and (4) judicial decision. Therefore, if a person gains employment and is subsequently terminated because of a prior criminal conviction, he/she may be able to sue their employer for wrongful discharge if they can establish that their termination violates public policy.
Recently, my law firm filed a lawsuit (Kendrick v. Two Men and a Truck) in the Allegheny County Court of Common Pleas alleging wrongful discharge because Mr. Kendrick was hired then subsequently terminated because a background check revealed a prior criminal conviction. We alleged that Mr. Kendrick’s termination violated the Constitution of the Commonwealth of Pennsylvania (“PA Constitution”). Pennsylvania case law specifically states that denying employment to persons with criminal records violates the Pennsylvania Constitution’s guarantee of the right to work. See Nixon v. Com., 789 A.2d 376 (Pa. Commw. Ct. 2001) aff’d on other grounds, 576 Pa. 385, 839 A.2d 277 (2003). Additionally, the PA Constitution specifically states:
“all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness” (emphasis added).
Pa. Const. Art. 1, §1. The word “liberty” has been defined as:
“[n]ot merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
Black Law Dictionary, (Bryan A. Garner ed., 9th ed., West 2009). The word “liberty” has also been defined as “[t]he right of self-defense against unlawful violence, the right to live and work where one will, to earn his livelihood in any lawful calling, to pursue any lawful trade or avocation, and freely to buy and sell as others may. Pa. Const. Art. 1, §1 (see footnote of Purdon’s Pennsylvania Statutes and Consolidated Statutes)(emphasis added).
Therefore, an argument can be made that as a result of Mr. Kendrick’s termination, he was denied the rights guaranteed to him under the PA Constitution, including: (1) the right to work, (2) the right to engage in the common occupations of life, (3) the right to earn a living in order to purchase property, (4) the right to earn a living in order to marry and raise a family and (5) the right to happiness.
We also argued that Mr. Kendrick’s termination violates Pennsylvania’s deeply ingrained public policy of trying to avoid unwarranted stigmatization and unreasonable restrictions upon former offenders. The PA Supreme Court in Secretary of Revenue v. John’s Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973), made note:
“of the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders. This State in recent years has been unalterably committed to rehabilitation of those persons who have been convicted of criminal offenses. To foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.”
Therefore, an argument can be made that Mr. Kendrick’s termination violates Pennsylvania’s public policy goal of trying to rehabilitate those persons who have been convicted in the past. Mr. Kendrick was foreclosed a permissible means of gainful employment, which is in direct violation of Pennsylvania’s public policy.
Based on the law, arguments can be made on behalf of persons who have been wrongfully terminated because of a prior criminal conviction. The PA Constitution guarantees all individuals “certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Pa. Const. Art. 1, §1. Do those rights include the right to work? If so, do those rights extend to individuals with prior convictions?
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, personal injury, and civil issues. For more information please visit www.lawkm.com.