Tuesday, October 23, 2018

Job interviews and expunged criminal records in Pennsylvania

Pennsylvania law limits employers' use of criminal records:
Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied. 
18 Pa.C.S. § 9125.

What about an expunged record? The gist of expungement is that (in most cases) it is like the criminal conviction never happened. So, what about when an employer asks an applicant with an expunged record if (s)he has ever been convicted of a crime?

Well, technically, as a matter of historical fact the applicant has been convicted. But, as a matter of law, that conviction no longer really counts. It's a no-win situation for applicants:
  • Answer historically correct (disclose the expunged record) and the employer knows about the record (defeating the purpose of getting it expunged); or
  • Answer technically correct (no convictions) and the employer may find out about the expunged record and feel like the applicant was dishonest. 
An individual required or requested to provide information [about expunged convictions, outside of a few exceptions] may respond as if the offense did not occur.
18 Pa. C.S. ¶ 9122.5. The amendments appear to become effective on June 28, 2019.

In other words, Pennsylvania will have a statute stating that generally job applicants with an expunged record may respond "as if the offense did not occur." As always, detecting employer violations and enforcement will be challenging.

HT: Dan McKenrick, who gave a great presentation about the amendments at Centre County Bench Bar Day. 

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