Can an employer use a prior criminal record to justify not hiring a qualified candidate?

In Pennsylvania, the use of criminal background checks is becoming an issue for persons with prior convictions seeking employment. Our firm has had a recent influx of cases revolving around the very issue. The answer to whether an employer can refuse employment based on prior convictions is complicated. In some situations, an Employer can use a person’s prior conviction as a bar to employment. However, in some situations, the Employer is not allowed to. 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. Therefore, if an individual had a conviction for robbing banks, he/she may not be able to work in the banking setting.

However, it is also important to note that there are certain situations where Section 9125 doesn’t factor into an Employer’s decision to refuse employment to a person with prior convictions. In some professions, an Employer is legally prohibited by law from hiring persons with certain offenses. CHRIA does not even factor into an Employer’s decision whether to hire a potential applicant.

For example, aircraft/airport positions (including those with direct access to airplane or secure airport areas) have restrictions. Under 49 U.S.C. §44936, an Employer MAY NOT hire individuals for the above positions if:

The individual, within the last ten (10) years, has been convicted of federal hijacking or other air crimes, murder, assault with intent to murder, espionage, treason, sedition, kidnapping, rape, extortion, armed robbery, weapons convictions, distribution (or intent to distribute) a controlled substance, of felonies involving: a threat, willful destruction of property, information or manufacture of a controlled substance, burglary, theft/fraud, possession or distribution of stolen property, aggravated assault, bribery, or illegal possession of controlled substance punishable by a maximum term of imprisonment of more than one year.

Therefore, even if a qualified individual were convicted of kidnapping 15 years, the prospective employer cannot use that prior conviction as a bar to employment. Another example is a childcare position. 23 Pa. C.S.A §6344(c) states that an Employer MAY NOT hire an individual if:

The individual has founded child abuse reports within the last five (5) years or with convictions for homicide, aggravated assault, kidnapping, rape, various sex crimes, prostitution felonies, concealing death of child, endangering welfare of child, or pornography ever, or for drug felonies within the last five (5) years.

Using the same example as above, if a qualified individual were convicted of homicide 15 years again, the prospective employer cannot use that prior conviction as a bar to employment. If an Employer is not legally required to exclude an applicant and the Employer does exclude an applicant because of a prior conviction that has no bearing on the applicant’s ability to perform the job in question, the Employer may be facing an employment discrimination lawsuit in violation of CHRIA and various other employment statutes.

This Article was originally posted on the network on October 16, 2014.