Pennsylvania and Philadelphia recently enacted changes that impact employer criminal background screening.

State Law

Enacted on December 14, 2023, and effective February 12, 2024, Pennsylvania's House Bill No. 689 amends Pennsylvania law relating to the expungement of certain criminal record information and employer immunity when hiring individuals with expunged records.

First, the legislation immunizes employers from liability for any claim related to the effects of expunged records or the lawful use of criminal record history information when an applicant voluntarily discloses an expunged conviction. This helps clarify a potential ambiguity under existing state law regarding whether an employer still might face negligent hiring liability for hiring an individual with an expunged criminal record where the individual goes on to commit some misconduct, such as injuring a third party. Previously, a negligent hiring lawsuit might contend that if the employer learned about an expunged criminal record by means other than a formal background check or official court records, the employer should have used the record to disqualify the person, and by not doing so, was negligent. Such a stance would seemingly be contrary to the purpose behind criminal record expungement, and the new legislation seems intended to prevent such an incongruous argument from surviving dismissal.

Second, the law extends the availability of automatic expungements to pardons. The law requires that the Pennsylvania Board of Pardons, which administers pardons, to notify the Administrative Office of Pennsylvania Courts (AOPC) on a quarterly basis of any pardons, and then requires the AOPC to notify the relevant Court of Common Pleas to order the record expunged. Under the law as amended, criminal history record information that has been expunged or granted limited access cannot be used by private entities for employment, housing, or school matriculation purposes, unless required by federal law. If the law works as intended, employers should simply not see the pardoned cases because they are supposed to be unavailable to the public. However, given the number of required steps in the process and different entities involved, it is not inconceivable that a candidate may believe an offense has been expunged, when it fact it remains available in the public record. Moreover, several pieces of this process remain unclear, such as how quickly the AOPC will act upon receipt of information from the Board of Pardons, whether individuals will be notified that their pardoned convictions were expunged, and whether the court docket will be changed to reflect a pardon status while expungement is in process.

Third, the law expands eligibility for Pennsylvania's pre-existing limited access status for criminal records. Now, certain individuals who are free from conviction for seven years and otherwise meet requirements can petition for limited access; previously, the minimum threshold was 10 years. The law also clarifies categories of offenses that are and are not eligible for limited access petitions.

Notably, this statewide legislation does not amend the existing requirements on an employer's general use of criminal record history.¹ Under existing law, Pennsylvania employers generally are required to use only job-related misdemeanor and felony convictions in making hiring decisions.

Philadelphia Ordinance

Philadelphia employers are subject to additional restrictions and procedural requirements under Philadelphia's Fair Criminal Record Screening Standards Ordinance. For its part, Philadelphia weighed in by enacting an amendment to that ordinance specifically addressing employer use of convictions subject to "exoneration." The city ordinance, effective January 19, 2024, defines "exoneration" as reversing or vacating a conviction by pardon, acquittal, dismissal or other post-conviction re-examination of the case by the court or other government official, and generally prohibits employers from denying employment based on convictions subject to "exoneration" as so defined.

To prepare for the January and February effective dates of the laws, employers in Pennsylvania may want to ensure that they have considered how to handle situations in which a candidate identifies that an offense has been expunged, pardoned, granted limited access or subject to other post-conviction relief before potentially denying employment based on such a record.

Posted: January 7, 2024

¹ See 18 Pa.C.S. 9125.