When I read that Lancaster City Council voted on October 1, 2014 to delete the box inquiring whether an employment applicant had been convicted of a crime from Lancaster City’s employment application form, it reminded me of how conflicted our positions are on criminal activity and employment.
The “Ban the Box” movement is a nationwide effort to reduce the effects of criminal convictions on employment. At the same time that Council is explaining that taking this action is necessary to give people a fair chance for a job, others are criticizing NFL officials for failing to ban football players from the League when accused of off-field violence, sometimes before they are even charged, much less convicted. Is domestic violence different from other crimes, or are football players different from Lancaster City employees? What does this mean for other employers?
Pennsylvania’s Criminal History Record Information Act provides that an employer may consider felony and misdemeanor convictions “only to the extent to which they relate to the applicant’s suitability for employment." The Act is often cited for the proposition that summary offenses and charges that do not rise to convictions may not be considered in hiring.
Notwithstanding the Criminal History Record Information Act, each body of the Pennsylvania General Assembly has enacted substantially similar legislation that would require an applicant for a position involving direct contact with children to provide a written statement of whether the applicant “has been the subject of an abuse or sexual misconduct investigation by any employer . . . unless the investigation resulted in a finding that the allegations were false.” Employers will be asked to indicate whether a former employee “was the subject of any abuse or sexual misconduct investigation.” This legislation, referred to as “Pass the Trash”, has the admirable goal of protecting school children from sexual abuse. But considering an “investigation” conducted by a prior employer and perhaps in the remote past certainly doesn’t comport with the policy requiring consideration only of criminal convictions, not unproven charges. See my blog post on Employment Law Lessons from the Penn State Scandal.
Now, Lancaster City Council will consider a resolution calling on other employers to “Ban the Box.” At the same time, the Pennsylvania legislature may in its few remaining session days enact “Pass the Trash” legislation. This is an interesting area where employers’ obligation to protect workers, customers and students, employees’ civil rights and public policy to employ those who have paid their debt to society intersect.
Christina Hausner is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, PA. She received her law degree from Duquesne University School of Law and has practiced in the area of employment law for over 25 years.