Monday, August 26, 2019

Employee's criminal background check claims survive motion to dismiss

Welp, it's not exactly the hottest topic around right now. Pretty dry, to be honest. But, employers must be careful when making decisions based on an applicant's criminal history. In Hunt v. UPMC (M.D. Pa.), the plaintiff alleged that UPMC failed to adhere to some of the technicalities of the  Pennsylvania Criminal History Record Information Act (CHRIA) and the Fair Credit Reporting Act (FCRA).

MD PA in Harrisburg
The employee had to re-apply for her job after UPMC acquired her employer. She disclosed that she had been charged with two misdemeanors. She claims the charges, however, were initially felonies and later downgraded by the DA to misdemeanors.

UPMC obtained her criminal history using ePatch, "a third-party website that provides criminal history information in Pennsylvania." Guess what? The charges still showed up as felonies. So, UPMC rescinded the offer of employment. UPMC claims they rescinded the employment offer because she lied about her charges (falsely claiming they were misdemeanors instead of felonies).

The employee filed a bevy of claims - for blogging purposes, I'm just going to focus on the CHRIA and FCRA claims. CHRIA allows employers to consider convictions (not arrests), and only to the extent they relate to the applicant's suitability for the position. Here, the employee claims that UPMC relied on her charges which have yet to be adjudicated - a violation of the CHRIA.

She also claims that UPMC got her records without providing the FCRA-required notices. Employers must provide notice to the employee that they are getting a "consumer report" from a "consumer reporting agency." And, they must also provide notice if their decision not to hire is based on such a report. It may not be obvious that the "credit" reporting act defines a "consumer report" to include criminal background checks - but it does. The Court also concluded that ePatch was a consumer reporting agency because it regularly gathers criminal history information for "fees, dues, or on a cooperative non-profit basis."

Ultimately, the Court allowed the employee's claims to go forward. This was just a motion to dismiss, meaning the Court assumes that the plaintiff's allegations are true. It sounds like there are plenty of factual disputes that have yet to be resolved. Nevertheless, a good reminder to watch the technicalities when making hiring decisions based on criminal records.


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