Published in the September, 2018 PA Insider Newsletter Articles
Published on: Sat 1st Sep, 2018 By: Michael A. Palombo
Governor Tom Wolf recently signed into law the Pennsylvania “Clean Slate” Bill, allowing individuals with non-violent criminal convictions to seal those convictions from public records and prohibiting employers from asking about such records on employment applications. The immediate effect of the Bill will limit the extent to which the criminal history of an applicant will be available for review.
The Bill authorizes individuals to have the following criminal actions sealed from public records:
- Arrests, not resulting in conviction;
- Non-violent misdemeanor convictions, which carried a sentence of a year or more in jail, and ten (10) years have passed since the individual’s last misdemeanor or felony conviction.
Under the current law, arrest information is insufficient, standing alone, to permit an employment action (e.g. rejection of an applicant, termination of employment). However the provision that offers a “clean slate” for older criminal records is new. Individuals can file a petition to seal their records under the new law beginning in December 2018. Automatic sealing, which will be handled by the Administrative Office of the Pennsylvania Courts will go into effect within two (2) years. As a result, criminal records that will be released to an employer will no longer include information regarding the arrests or crimes that are now to be sealed.
While the Bill authorizes the sealing of specified convictions, it does not allow for record sealing in more serious offenses, such as murder, kidnapping, sexual offenses, weapons charges, and child endangerment, among others.
The Clean Slate Bill will obviously limit an employer’s ability to receive or rely upon complete criminal history information of prospective and even current employees. While most employers conduct background checks prior to making formal employment offers, the sealing of conviction records will result in background checks that fail to include conviction histories for certain offenses.
The law, recognizing the potential for liability that would flow from an employee who is hired and commits a crime consistent with the sealed history, provides immunity from civil liability for employers, under certain circumstances. Specifically, the Bill provides immunity from civil actions for employers who hire an individual whose criminal conviction records have been sealed in accordance with the law, when the individual commits a criminal act that is related to the prior conviction.
Pennsylvania law still permits employers to ask an applicant whether he/she has been convicted of a misdemeanor or felony on a job application, unless an employer is located in a “ban the box” municipality that has passed legislation further limiting the ability to request or rely upon this information. However, the Clean Slate Bill now provides that individuals shall not be “required or requested to disclose information about the individual’s criminal history records” that have been sealed pursuant to the Bill.
At the very least, employers must now review job applications and background questionnaires and ensure such materials comply with the Clean Slate Bill’s enhanced restrictions.
Campbell Durrant attorneys remain available to assist you in reviewing job application materials and to ensure that all materials comply with the requirements of the newly-enacted Clean Slate Bill.