Hiring? Use PA Criminal Background Checks Carefully or Prepare for Court
In Pennsylvania and across the country, criminal background checks are a normal part of the hiring process in just about every industry. It makes sense for employers to conduct PA criminal background checks. Humans are creatures of habit, and recent behavior is often a good indicator of future behavior. Where recent behavior indicates that someone would be a poor fit for a job, employers are right to consider it.
So you couldn’t be mad at a cab company for refusing to hire someone with a recent history of DUIs. Likewise, you couldn’t blame a business that didn’t hire someone with multiple arrests in the past 6 months.
Entrepreneurs have to be thoughtful about protecting what they’ve built. Which is why I’ll never understand why many businesses are so mindless when it comes to running criminal background checks on job applicants.
Getting Past the Stigma
Before I started MZA Legal I was the Managing Attorney at PLSE. At PLSE I spoke with hundreds, if not thousands of people who were denied jobs for records that had no reasonable relation to their ability to do the job.
One example that sticks out was a 60-something year-old grandfather searching for a part-time job. He was looking for something to do in retirement. He had more than 30 years of experience working at a high end restaurant. However, he got that job before you could run a background check with the click of a mouse. In the 21st century he found that restaurants didn’t want to hire him to due a past conviction that was more than 40 years old.
Another example that sticks out is of a mother who wanted to be join the police academy. However, she had been arrested a few years earlier during an argument with a family member. Even though the charges against her were quickly dropped, they were still part of her record. And it was the only thing standing between her and a dream career in law enforcement.
I even met a young man in his mid 20s who was denied a job with a popular ride sharing app because of a summary citation he received when he was 18. The citation was for being present in a park after dark.
I could go on and on telling true stories about how employers, blinded by the stigma of a criminal record, denied opportunities to otherwise qualified applicants. The fact is, many businesses perform background checks with no regard for common sense. Rather than considering the relationship between a record and the job, they deny everyone with a criminal background. The end result can be disastrous for everyone. Let me explain.
What many companies don’t realize is that denying everyone with a record can lead to a lawsuit. Pennsylvania law limits the use of criminal records in the hiring process. Employers that don’t conduct PA criminal background checks thoughtfully are begging to be sued.
In 2012, Sunoco denied a job applicant based on a 5 year-old arrest that never led to a conviction. In Pennsylvania, it is illegal for an employer to deny a job applicant based on an arrest for which they weren’t convicted. This law makes sense. As the saying goes — you’re innocent until proven guilty. Like many companies, Sunoco didn’t take the time to distinguish between arrests and convictions when reviewing background checks. The consequence? They caught a lawsuit.
In 2016, SEPTA ran into trouble after being accused of instituting a blanket ban on job applicants with past drug convictions. The class action lawsuit filed against the transit organization cliamed that SEPTA didn’t consider factors such as the age of the conviction or its relevance to the actual job. Instead they denied any applicant with a drug conviction. The lead plaintiff in the case alleged that despite his lengthy work history, SEPTA denied him employment as a bus driver in 2014 based on a drug conviction from 1997. Five years and many attorney invoices later, SEPTA reportedly agreed to an out of court settlement to the tune of $3.6 million.
I won’t take up time and space explaining all of the laws that restrict the use of background checks in the hiring process. If you have questions about that, we should chat on a one-on-one basis. But here is the moral of the story — use criminal history information thoughtfully during the hiring process. Otherwise, you can expect to end up in court.
Denying employment opportunities to people with criminal records without common sense consideration for individual circumstances is harmful to society at large. Employment is fundamental to individual and community wellbeing. Not only is it the means through which we provide for ourselves and our families, but it is a defining part of who we are. Don’t believe me? Think about the first few questions you are likely to ask someone when you’re getting to know them. I’m willing to bet one of those questions is some variation of ‘what do you do?’.
Due to historical factors that I won’t get into here, individuals from certain communities are much more likely to have a record than others. What happens in these communities when most of the people living there are considered unemployable due to a criminal record? The community, whether urban or rural, is torn apart by the ills of poverty and a sense of hopelessness sets in.
I’m not expecting private companies to fix communities broken by decades of systemic exploitation and oppression. However, I don’t think it’s too much to ask them not to contribute to their further decline. Which is exactly what happens when employers throw every application attached to a criminal history record in the garbage.
Shareholders are not a business’s only stakeholders. Whether the issue is social justice or climate change, business leaders should recognize that they have a social responsibility to society at large. And by embracing that responsibility, you make our country a better place to live.
Criminal History, is not Personal History
During my time at PLSE we had a simple mantra. Criminal history is not personal history. At most, a criminal record is simply a snapshot of a person’s worst moment. Employers should keep this in mind when running PA criminal background checks.
How would people perceive you if all they saw was your worst moment? Would they want to hire you? It’s important to remember that we all make mistakes. And after being held accountable we should all have the opportunity to show that we can offer more.
As an employer, you want to hire the best person for the job. Truth is, sometimes that person is going to have a criminal history. Don’t let stigma get in the way of making the right decision for your business. Use common sense, and give yourself a chance to see the entire person. You may be surprised by what you learn.
And if you have any questions about your responsibility when using PA criminal background checks to make hiring decisions, reach out to MZA Legal.