Published in the October, 2019 issue of the PELRAS newsletter
Published on: Mon 28th Oct, 2019 By: Julie A. Aquino
In 2018, the Pennsylvania Clean Slate Law was enacted and created an automated computerized process to seal arrests that did not result in convictions within 60 days, summary convictions after 10 years, and certain second and third-degree misdemeanor convictions if there are no subsequent misdemeanor or felony convictions for a period of 10 years after the time of conviction. Under the Clean Slate law, some first degree misdemeanor offenses can also be sealed by petition. For an offense to be automatically sealed, all court fines must have been paid. Importantly, the Clean Slate Law does not allow for record sealing of more serious offenses such as murder, kidnapping, sexual offenses, weapons charges, and child endangerment. A complete list of offenses excluded from sealing is located at 18 Pa.C.S. § 9122.1.
The automatic sealing process under the Clean Slate Law began in June 2019, and according to the Pennsylvania Bar News, about 7.5 million of 30 million eligible criminal records have been sealed. The remainder of the eligible criminal records are on track to be sealed by the end of June 2020. See Pennsylvania Bar News, Volume 29, No. 18 (Sept. 23, 2019). Sealed records are hidden from public view, but are visible to law enforcement agencies and employers who use FBI background checks. 18 Pa.C.S. § 9122.5.
Employers should be aware that job applicants are permitted to respond to questions about criminal convictions that have been sealed as if the offense did not occur. 18 Pa.C.S. § 9122.5. If the job applicant is required to undergo a FBI background check, such as the background clearance required under the Child Protective Services Law, then the offense will still appear. In these circumstances, the job application should be clear and direct the applicant to report all offenses, including those that have been sealed.
Most job applications require applicants to disclose information about their criminal convictions. Under the Pennsylvania Criminal History Records Information Act (“CHRIA”), employers may only use a misdemeanor or felony conviction to disqualify an applicant where the conviction relates to the applicant’s suitability for the position applied for. 18 Pa.C.S. §9125. Under the Clean Slate Law, certain misdemeanors now will be sealed and do not have to be reported by the applicant unless the applicant must undergo an FBI background clearance. Employers may want to consider customizing employment applications based on whether the position applied for has “direct contact” with minors and thus requires an FBI background clearance under the Child Protective Services Law, in order to avoid confusion about whether sealed convictions should be disclosed on the job application. Campbell Durrant attorneys are available to assist you with reviewing job applications and with questions regarding compliance with the Child Protective Services Law, CHRIA and the Clean Slate Law.