Court clarifies breadth of PA criminal history statute
The U.S. Court of Appeals for the Third Circuit recently interpreted Pennsylvania’s Criminal History Record Information Act and clarified the circumstances in which it applies.
Criminal History Record Information Act
Pennsylvania’s Criminal History Record Information Act provides that “[w]henever an employer is in receipt of information which is part of an employment applicant’s criminal history record information file,” it may consider convictions only “to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”
In addition, if an employer decides not to hire an applicant based “in whole or in part on criminal history record information,” it must notify the applicant of that decision in writing.
The statute defines “criminal history record information” as
[i]nformation collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, informations [sic] or other formal criminal charges and any dispositions arising therefrom. The term does not include intelligence information, investigative information or treatment information, including medical and psychological information, or information and records. . . .
Employers who violate this statute may be liable for actual damages of $100 or more per violation, as well as reasonable costs and attorneys’ fees. In addition, if the violation is found to be willful, the employer may be liable for punitive damages between $1,000 and $10,000. The Act applies even in cases where the federal Fair Credit Reporting Act does not.
The Act does not expressly address whether it applies to an applicant’s self-disclosure of criminal history information.
Phath v. Central Transport
Rodney Phath applied for a truck driver position with Central Transport. When the company advised him that it would conduct a criminal background check, Mr. Phath disclosed that he had been convicted of armed robbery and spent six years in prison. The company immediately told Mr. Phath that it would not hire him because of that conviction.
Mr. Phath sued, alleging that the company violated the Pennsylvania Criminal History Record Information Act by disqualifying him based on his conviction and by not providing him with written notice of the decision. The company argued that the law did not apply because it learned of Mr. Phath’s criminal history directly from him and not from a state agency. The federal district court agreed and dismissed the case. Mr. Phath appealed.
The Third Circuit decision
A three-judge panel of the Third Circuit rejected the company’s argument that self-disclosure of criminal history information is not covered by the statute. According to the panel, the Criminal History Record Information Act “does not limit how or from whom the employer must receive” the information. Because Mr. Phath’s criminal history was indisputably part of his criminal history record information file (or the compilation of criminal history facts collected and maintained by state agencies), the manner in which the company obtained the information was not material.
According to the panel, “What matters . . . is the type of information that the employer received, not its source.”
The case has been remanded to the district court for further proceedings.
Practical reminders for Pennsylvania employers
The circumstances of this case are not unique. Applicants often voluntarily disclose past convictions when they know the employer is going to conduct a background check. To the applicants' credit, this “pre-disclosure” can demonstrate openness and credibility.
Generally, under the federal Fair Credit Reporting Act, a pre-adverse action notice is required only when the employer obtains a “consumer report” as part of its background check. Thus, an applicant’s self-disclosure of a conviction would not trigger compliance with the FCRA, nor would discovery of a conviction if the employer conducted its own background check without using a third party. However, the Pennsylvania law would apply in both of these scenarios.
If an employer learns of an applicant’s criminal history, these four steps should be followed to comply with Pennsylvania law, and with federal law if it applies:
No. 1: Analyze criminal history.
Before making an adverse decision, ensure that any convictions actually relate to the applicant’s suitability for employment in the position for which he or she applied.
No. 2: Notify the applicant.
When making an adverse decision based in whole or in part on criminal history, notify the applicant in writing of that decision, even if the information was provided by the applicant directly.
No. 3: If the FCRA applies, provide the pre-adverse action notice.
Before finalizing an adverse decision based in whole or in part on criminal history learned from a consumer report, notify the applicant in writing of this potential decision, and provide the applicant an opportunity to respond and the notices required by the FCRA.
No. 4: If either law applies, provide adverse action notice(s).
Adverse action notices are required by both the Pennsylvania Act and the FCRA. If an applicant’s response to the pre-adverse action notice does not alter the employment decision, notify the applicant in writing of the decision and provide the notices required by the FCRA.
For assistance with employment issues and criminal history, contact a member of Constangy’s Background Check & FCRA Litigation practice group.
