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PA Human Relations Commission Proposed Policy Guidance on Job Applicants with Criminal Records

Labor and Employment News Alert | February 2010
Nancy Conrad, Esq. and George C. Morrison, Esq.

The Pennsylvania Human Relations Commission (PHRC) is soliciting public comments on the adoption of a proposed policy guidance which would significantly change how employers use criminal record information during the hiring process. The PHRC is accepting public comments on the proposal through March 5, 2010 at phrc@state.pa.us. We encourage employers to utilize this opportunity to submit their comments to the PHRC.

Background

Pennsylvania state law permits an employer to deny employment to an applicant who was convicted of a felony or misdemeanor that relates to the individual's ability to perform a specific job. If an employer denies employment on this basis, the employer must inform the applicant in writing that the job offer is being withdrawn, in whole or in part, because of criminal history information. An employer cannot rely on a mere arrest record or a summary conviction in its hiring decisions.

Proposed Guidance

The PHRC is proposing guidance that presumes that any employer policy that excludes applicants on the basis of a criminal record disparately impacts Blacks and Hispanics. In such cases, the PHRC would find the policy or practice unlawful. The burden would then shift to the employer to rebut the presumption with appropriate geographic data or applicant pool data, showing that the policy or practice does not disparately impact Blacks or Hispanics. If no such showing can be made, the employer would have to prove a "business necessity" defense. According to the Policy Guidance, a business necessity must be shown by establishing some level of empirical proof that the prospective employee poses an "unacceptable level of risk."

Even if the employer proffers a business necessity defense, a complainant may rebut the defense by showing that there is an alternative, less discriminatory policy or practice available that would satisfy the employer's demonstrated business needs. The PHRC acknowledges that various state and federal laws require some employers to obtain criminal records and reject applicants with certain convictions from employment. For example, child care and nursing home facilities are restricted in their ability to hire certain individuals convicted of specified crimes under Pennsylvania law. The Policy Guidance encourages employers covered by such laws to confine employment restrictions solely to those parameters.

Recommendations

If adopted, the proposed Policy Guidance will significantly impact hiring procedures and practices. Given the gravity of this situation, we recommend employers take a proactive position. Employers should consider doing the following:

  • Submit any comments/concerns about the proposed Policy Guidance to the PHRC at phrc@state.pa.us;
  • Determine whether you fall under any current state or federal laws restricting the hiring of certain individuals for criminal offenses;
  • Re-examine your hiring processes. Rather than having a blanket question on the employment application, employers should consider a post-offer/pre-employment process that tailors questions about criminal history;
  • Absent a law barring the hiring of an individual for a specific conviction, employers should develop a process to evaluate criminal conviction information received in the hiring process.

Conclusion

We will continue to update our current and prospective clients of further developments, including the PHRC's adoption of a guidance.

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This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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