PA Criminal History Record Information Act: Probationary Employee Cannot Be Terminated Based on Criminal History

The Pennsylvania Criminal History Record Information Act provides certain projection and opportunities for job applicants who are seeking employment employees but severely restricting instances where an applicant for a job can be rejected based on a prior criminal record. The Criminal History Record Information Act provides that whenever an employer is in receipt of information which is part of an employment applicant’s criminal history record information file, the employer may only use that information for the purpose of deciding whether or not to hire the applicant, where felony and misdemeanor convictions relate to the applicant’s suitability for employment in the position for which the prospective employee has applied. Further, the employer is required to notify the applicant in writing if the decision not to hire the applicant is based in whole or in part on criminal history record information. Courts have found that this law only applies to the hiring decision and not to post hiring decisions made on the basis of a criminal history.

In Negron v. School District of Phila., E. D. Pa. 2014 U.S. Dist. LEXIS 4947 (Yohn, J.)(E.D. Pa. January 15, 2014), the Plaintiff signed a document titled, “temporary professional employee notification” and secured a job as a non-tenured teacher, subject to a pending background check. Prior to securing employment as a teacher, the employee completed an application which asked, “[w]ere you ever convicted of a criminal offense?” Conviction was defined in the application as “an adjudication of guilt…which results in a fine, sentence, or probation” but the applicant was permitted to omit convictions for which he successfully completed an Accelerated Rehabilitative Disposition Program (“ARD”). The employee had been convicted of two unspecified charges for which he successfully completed ARD and indicated on his application that he did not have any prior convictions. After the employee had already commenced employment, the School District terminated the employee for allegedly misrepresenting his criminal history on his employment application.

In a prior design in Negron, the court held that the Criminal History Record Information Act applied only to hiring decisions and granted the School District’s motion to dismiss but the court granted the employee leave to file an amended complaint under a “‘probationary employee theory.” Thereafter, the employee amended the complaint and alleged that he was a non-tenured teacher hired subject to the results of a pending background check, he was not permanently hired as a teacher, and his status as a non-permanent employee or an employee temporarily hired pending completion of his background check was confirmed or suggested by the Defendant employer’s termination of employment on the basis of his application and the results of that background check.
While in Negron the court held that the Criminal History Record Information Act applies only to hiring decisions, the court found that since the employee was hired subject to the results of a pending background check and it was alleged that his termination was motivated by his criminal history, construing it in the light most favorable to the plaintiff, the amended complaint alleges that because the employee was hired subject to a background check his subsequent termination, based on that background check, potentially constitutes a hiring decision, drawing his claim within the scope of the Criminal History Record Information Act.

For more information about the Pennsylvania Criminal History Record Information Act and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2122109.html

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Filed under Employment Law, Pennsylvania Criminal History Record Information Act

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