Pennsylvania Court Finds Criminal History Exclusions Unconstitutional

Posted: January 08, 2016

On December 30, 2015, the Commonwealth Court of Pennsylvania determined that a provision in the state’s “Older Adults Protective Services Act” (the Act) was unconstitutional as it required a lifetime employment ban based on criminal history convictions. Older Adults Protective Services Act Background The Act was originally enacted in 1987 with the goal to help protect older adults from “abuse, neglect, exploitation and abandonment.” In 1996, an amendment was passed that required criminal background checks for applicants seeking employment in a covered facility or position, in addition to individuals already employed prior to the amendment. Notably, the 1996 amendments created two categories:

1. Disqualifying criminal convictions regardless of when the conviction occurred.
2. Included crimes such as murder, rape, sexual assault and incest.
3. Disqualifying criminal convictions where the conviction occurred within the last 10 years.
4. Included crimes such as criminal homicide, felony drug violations, aggravated assault, kidnapping, unlawful restraint, burglary, robbery, forgery and arson.

These criminal background check requirements were then further expanded in 1997 to enforce a lifetime ban on all crimes listed eliminating the 10 year restriction that previously existed in the second category. The 1997 amendments also drew a distinction in terms of the Act’s applicability: individuals who were previously employed for less than 1 year prior to the 1997 amendments were discharged, while individuals employed for more than 1 year were allowed to continue employment but could not be employed at a different facility. Previous Court Challenges An initial complaint was filed in 2001, in which the Commonwealth Court found that the criminal history provisions of the Act were unconstitutional. The ruling was affirmed by the Pennsylvania Supreme Court in 2003. The PA Supreme Court determined that the provision requiring immediate termination of individuals employed for less than 1 year was the most problematic as it could find no rational basis for treating the two groups of individuals differently. Following this ruling, the Pennsylvania Department of Aging adopted an interim policy that would apply to covered facilities while the Pennsylvania General Assembly worked on amending the unconstitutional provisions of the Act. This interim policy allowed individuals to become eligible for employment by working in the dependent-care industry for 5 years from the date of conviction or release from incarceration. Facilities were also required to review individuals on a case-by-case basis. Current Constitutional Challenge Despite the previous court ruling and implementation of the interim policy, the Pennsylvania General Assembly never amended the law. Thus, the case at hand arose following a petition from five individuals and a non-profit social service provider that claimed the lifetime ban remained unconstitutional. These individuals possessed criminal convictions that disqualified them from employment, and the social service provider claimed it had to refuse employment to otherwise qualified individuals who presented evidence of rehabilitation. The petitioners claimed that the Act’s distinction in terms of applicability violated due process as there was no rational relation between treating individuals with criminal records differently and the legitimate state purpose of protecting elder individuals. Siding with the petitioners, the court determined that the Act as written did not allow for employer discretion or take into account factors such as the nature of the crime, facts surrounding the conviction, time passed since the conviction and any evidence of rehabilitation. In particular, the court found that there was no rational basis to treat individuals who had been employed in a covered facility for more than 1 year as capable of rehabilitation, but then not extending that same rational to individuals who had been employed for less than 1 year. Instead, the Act treated those individuals as “incapable of rehabilitation and forever a threat to older adults.” Further, the court determined that the Act’s current prohibition covered a wide range of crimes – from murder to misdemeanor theft – that presented different risks of employment. Impact It is unclear if the Pennsylvania General Assembly will consider amendments to the Act in light of this court ruling that declared the lifetime ban unconstitutional and unenforceable. Court rulings on the issue of criminal history requirements in legislation are rather rare. In this case, it’s notable that the court took care to address concepts that employers have been faced with the past several years such as conducting an “individualized assessment” and the EEOC’s 2012 guidance on the use of criminal and arrest records in employment. Employers impacted by the Act and the court ruling should consult with qualified legal counsel to determine what changes need to be implemented to their hiring process.