Use of criminal records for employment decisions has always been a challenge for businesses and with the implementation of the new “Clean Slate” bill employers should exercise caution.

Pennsylvania law has long provided that an employer can only consider an applicant’s felony and misdemeanor convictions to the extent the convictions relate to an applicant’s suitability for the position for which they have applied. Under existing law, an employer is required to notify the applicant in writing if the decision not to hire was based in whole or in part on criminal history record information. Generally, in Pennsylvania, employers are not permitted to consider arrest records for hiring decisions. The Equal Employment Opportunity Commission has also stated that use of arrest records disproportionately affects minority candidates for employment and could result in discrimination claims.

The Clean Slate bill, which was recently signed by Governor Wolf, further protects individuals from an employer’s ability to utilize old criminal records in making employment decisions. Under this new legislation, individuals can petition the court for their records to be sealed if they have been free from conviction for 10 years for an offense that resulted in a year or more in prison and they have paid all court-ordered debts. The law also automatically seals records for second or third degree misdemeanor offenses that include less than a two-year prison sentence if the person has been free from conviction for 10 years. It further provides that law enforcement agencies must remove records of arrests and other criminal proceedings where three years have passed without a conviction or further proceedings.

The legislation does not allow for records-sealing in more serious crimes, such as firearms charges, sexual offenses, murder, kidnapping, child endangerment, and endangering the welfare of children, among other serious offenses.

The bill includes a mandate for the Administrative Office of Pennsylvania Courts not to post on internet websites any information relating to convictions, arrests, indictments, or other information that was subject to a court order or was automatically sealed. Criminal docket searches previously could be used to reveal a candidate’s criminal history records, including arrests. Because the dockets are public record, employers often utilize a criminal docket search as part of a candidate’s background investigation. Now, such docket searches may only have limited information.

The Clean Slate bill also prohibits employers from requesting an individual’s criminal history records that have been expunged or sealed pursuant to the new law. The statute provides that if a candidate is questioned, they may respond as if the offense did not occur. This could impact the way employers ask questions on employment applications about criminal convictions. Employers should now include a disclaimer on their applications that the candidate should not provide information about criminal conviction that has been expunged or sealed pursuant to law. The law provides an exception for federal laws that require consideration of an applicant’s criminal history for purposes of employment.

Employers may not use sealed or expunged offenses to prohibit the employment of a candidate. The Clean Slate bill provides immunity from liability for employers who hire an individual with an expunged or sealed criminal record in a civil action based upon damages suffered as a result of the employee’s criminal or unlawful actions and the individual’s suitability for employment. The impact of the Clean Slate bill will limit the information employers may receive from a criminal background check and employers will no longer be able to consider certain old criminal records for employment decisions.

For more information about the new law, please contact employment attorney Elaina Smiley at [email protected] or 412-456-2821.