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Hiring good and reliable employees is a big challenge – good inter-view, good qualifications, clean criminal background check – uh, oh – your best candidate was con-victed of shoplifting 25 years ago, or charged with assault 10 years ago, what if the was just arrested, but not convicted… and what is a non-conviction anyway? Improper use of criminal background infor-mation in hiring decisions can make the employer liable for fines, damages, and attorney’s fees. Following is some information that can help you better understand the laws regarding employee disquali-fication for criminal conduct.

State Laws Regarding Use of Ar-rest and Conviction Records by Employers

In Pennsylvania, whenever an em-ployer is in receipt of information which is part of an employment applicant's criminal history record information file, the employer may use that information for the pur-pose of deciding whether or not to hire the applicant, only in accor-dance with 18 Pa.C.S. § 9125. Specifically, felony and misde-meanor convictions may be con-sidered by the employer only to the extent to which they relate to the applicant's suitability for em-ployment in the position for which he or she has applied. Further, if the convictions are the basis for adverse employment action, the employer is required to notify the applicant in writing that the deci-sion was based in whole or in part on criminal history record informa-tion.

Any person (employee or employ-ment candidate) aggrieved by a violation of the provisions of 18 Pa.C.S. § 9125, et seq has the right to bring an action for damages in a court of competent jurisdiction. 18 Pa.C.S. § 9183(2) states that an employer that violates the statue can be held responsible for actual and real damages of not less than $100 for each violation and rea-sonable for costs of litigation and attorney's fees. Further, exemplary and punitive damages of not less than $1,000 nor more than $10,000 shall be imposed for any violation that is found to be willful.

The application of this statute was discussed in detail in the case of Reynolds v. Murphy Ford, Inc., 2007 Phila. Ct. Com. Pl. LEXIS 146, 2-3 (Pa. C.P. 2007). Rey-nolds worked as an auto salesman for a dealership. Reynolds re-vealed in his application that 14 years prior he had been arrested several times for theft and bur-glary. He had entered guilty pleas on the cases, and had been given county sentences. Murphy Ford had written employment policies, one of which stated that no one would be hired if she/he had any convictions for theft, burglary, or other enumerated offenses. When the official state police record was received showing appellant's prior convictions, the employee was dis-charged. Thereafter, Reynolds filed suit alleging wrongful termination and wrongful use of his prior criminal record in violation of 18 Pa.C.S. § 9125. The employer moved for summary judgment, ar-guing that appellant's employment as a salesman gave him access to clients' private financial informa-tion and thus his criminal record had a direct relationship to his suit-ability for the position. They also argued that as an "at will" em-ployee, he could be let go for any reason. Reynolds’ argument that his termination was a violation of 18 Pa.C.S. § 9125 failed because the court held that, even though his convictions were over 10 years old, his criminal convictions were related to his suitability for a job as a car salesman handling confi-dential financial information of customers and because there was no public policy basis to deviate from Pennsylvania’s at-will em-ployment doctrine. Reynolds v. Murphy Ford, Inc., 2007 Phila. Ct. Com. Pl. LEXIS 146, 2-3 (Pa. C.P. 2007). The primary point is that the employer’s written standards and common sense rules provided them with a complete defense.

EEOC Guidance Regarding the Use of Arrest and Conviction Records by Employers

The Equal Employment Opportunity Commission (EEOC) has issued Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982). See, EEOC Notice 915.061 9/7/90. Therein, the EEOC directed that an employer’s using arrest or conviction records as an absolute bar to employment disproportionately excludes certain racial groups. Therefore, such records should not be used in this manner unless there is a business need for their use. Whether there is a business need to exclude persons with conviction records from particular jobs depends on the nature of the job, the nature and seriousness of the offense, and the length of time since the conviction and/or incarceration.

The EEOC further instructed that, unlike a conviction, an arrest is not reliable evidence that an applicant has committed a crime. Thus, an exclusion based on an arrest record is only justified if it appears not only that the conduct is job-related and relatively recent but also that the applicant or employee actually engaged in the conduct for which he or she was arrested.

What Does this Mean for Your Operation?

Employers must walk a tightrope when it comes to using information from criminal background checks in hiring decisions. They must balance the statutory requirement of completing criminal background checks with the EEOC regulations, statutes and local ordinances allowing fines and penalties. The consequences of a fall in either direction are dramatic - negligent hiring suit, EEOC discrimination claim -- Ladies and Gentleman I draw your attention to the center ring, high attention to the center ring, high atop the big tent - - a little nervous?

How about a safety net? A written policy and consistent application. Employers should establish a written policy of requiring criminal background checks in accordance with 18 Pa.C.S. § 9125 and local ordinances like Philadelphia’s new “Fair Criminal Records Screening Standards”, Phila. City Ordinance Chap. 9-3500. Take the opportunity now, to review your policy and procedures regarding the use of criminal background information in hiring decisions and to insure you are in compliance with local, state and federal regulations and to protect your company from employee claims or bad hiring decisions.

Best Practices

  1. Centralize the review of criminal records to insure processes are handled consistently and privacy is maintained.
  2. Criminal Background checks should be done with your final candidates only. Recommended timing is post offer; with hire
    contingent on clean background check. This decreases costs and avoids claims of dismissing candidates with prejudice.
  3. Use written releases authorizing background checks. On the application capture at least 5 years of residency so you can run both multi-county and federal criminal history reports.
  4. Review reports based on relevancy of the offense and age of the infraction. Use the minimally necessary rule when discussing details with others.
  5. Confirm the facts with the candidate, before making a hiring decision.
  6. Complete case by case analysis. A blanket exclusion of persons convicted of any crime would not address the “job-related and business necessity” standard. Summarily excluding candidates could lead to unintended disparate impact.
  7. When rejecting a candidate because of their criminal history, be able to justify the job-relatedness and qualify the business necessity. There are three factors to consider (a) nature and gravity of the offense, (b) time that has passed since conviction
    (c) nature of the position sought.
  8. Communicate to the candidate in writing the details of your decision; as required by law.
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