It is well known that employers frequently run criminal background checks on job applicants as part of the hiring process. Pennsylvania\u2019s Criminal History Record Information Act (\u201cCHRIA\u201d), however, protects job applicants from being disqualified from employment by a prospective employer because of the applicant\u2019s criminal background except in limited circumstances. CHRIA only allows an employer which is \u201cin receipt of information which is part of an employment applicant\u2019s criminal history record information file\u201d to use this information in its hiring decision when: (1) the applicant has a felony and misdemeanor conviction on their record; and (2) the conviction relates to suitability for employment for the position.<\/p>\n
An employer typically \u201creceives\u201d information which is part of an applicant\u2019s \u201ccriminal history record information file\u201d through a criminal background check. But what if a job applicant volunteers that they have a criminal background after the employer informs them that a background check is going to be done? Does CHRIA provide the job applicant with the same protection from an employer\u2019s improper use of volunteered criminal history information as information received from a criminal background check? The Third Circuit Court of Appeals in Phath v. Central Transport LLC recently considered this issue and decided that employers must comply with the mandates of CHRIA where criminal history information is received directly from the job applicant.<\/p>\n
In Phath, an applicant for a driver position directly divulged to Central Transport that he had a robbery conviction years ago, after he was told a pre-employment background check was going to be done. Central Transport declined to hire him on that basis. Phath sued Central Transport alleging that it violated CHRIA because his robbery conviction did not make him unsuitable for the driver job and because Central Transport failed to notify him in writing that the conviction was a factor in its refusal to hire him, as required by the Act.<\/p>\n
Central Transport argued that CHRIA does not apply to criminal history information received directly from a job applicant. Instead, it asserted that the Act applies only where an employer receives criminal history information from a state agency which is part of the applicant\u2019s criminal history record information file maintained by the agency.<\/p>\n
The Third Circuit rejected Central Transport\u2019s position, finding that criminal history information disclosed by a job applicant is part of the applicant\u2019s \u201ccriminal history record information file.\u201d The Court opined that the Act\u2019s protections afforded to job applicants do not hinge on the source of the criminal history information. What matters is the type of criminal history information received.<\/p>\n
How Pennsylvania employers can ensure compliance with CHRIA:<\/p>\n
1. Determine if the job applicant\u2019s criminal history is protected from being used in making a hiring decision:<\/p>\n
\tHas the applicant been convicted of a felony or misdemeanor?<\/p>\n
\t\tIf \u201cNO\u201d \u2013 The criminal history information cannot be used under any circumstances. It is a CHRIA violation to use it in a hiring decision.
\n\t\tIf \u201cYES\u201d- The felony or misdemeanor conviction can be used in the hiring decision only if relates to the applicant\u2019s suitability for the employment position.<\/p>\n
\t\t\tConsider the nature of the crime and the job duties for the position in determining suitability for the job. (For example, a job applicant\u2019s felony theft conviction may relate to their suitability to work as a bank teller.)<\/p>\n
\t\tRemember, the source of the criminal history information should not be considered. The information does not have to be received through a criminal background check.<\/p>\n
2. Notify the job applicant in writing if criminal history information is used in making the hiring decision.<\/p>\n
3. Consult with experienced employment counsel for advice in navigating compliance with CHRIA.<\/p>\n
Other relevant federal and local laws:<\/p>\n
Pennsylvania employers should be aware of local laws that may impact use of criminal background information in the hiring process. For instance, the City of Philadelphia\u2019s Fair Criminal Record Screening Standards Ordinance places limits on questions that City employers can ask job applicants about their criminal history.<\/p>\n
The federal Fair Credit Reporting Act also imposes additional requirements on employers that use information provided by credit reporting agencies, which encompasses criminal history information, in making hiring decisions.<\/p>\n