The Older Adults Protective Services Act (“the Act”) prohibits individuals with certain criminal convictions from being employed to take care of older adults. Disqualifying convictions include such crimes as homicide, aggravated assault, rape, burglary, robbery, forgery, retaliation, corruption of minors, and other offenses. It further provides that employees who have been employed in a facility caring for older adults for at least one year may remain employed by the facility.

In Peake v. Commonwealth of Pennsylvania, No. 216 M.D. 2015 (Pa. Commonwealth Ct. December 30, 2015), the Pennsylvania Commonwealth Court held that the Act’s lifetime prohibition for individuals convicted of certain crimes violates the Pennsylvania Constitution. The court reasoned that, since employees convicted of crimes were allowed to work at the facility if they had already worked there at least one year, the lifetime ban on employment at facilities covered by the Act had no rational relationship to the goal of protecting older adults from abuse, neglect, exploitation and abandonment. The court further opined that “it defies logic to suggest that every person who has at any time been convicted of any of the crimes [enumerated in the Act] presents a danger to those in an Act-covered facility.”

The court stated that facilities subject to the Act “should not be required to employ a person with a criminal record, but they should have the opportunity to assess the situation and exercise their discretion to employ an applicant found to be sufficiently rehabilitated and a good fit for the job.”

The court therefore declared that the section of the Act requiring a lifetime prohibition from working in Act-covered facilities upon conviction of one of the enumerated crimes was unconstitutional.  The court ordered that Pennsylvania could not enforce the lifetime ban on employment set forth in the Act. The court further ordered that an Interim Policy that had been implemented by the Department of Aging also was invalid.

What Does This Mean For You? If you are an employer covered by the Act, unless the Pennsylvania Superior Court or Pennsylvania Supreme Court overturns the Peake decision, covered employers no longer may automatically ban from employment individuals who have convictions for the listed offenses. However, the Peake case does not set forth any guidelines that affected employers now may use in making employment decisions. The Pennsylvania Department on Aging has indicated that the departments affected by the decision are currently evaluating posted information about prohibitive hires. The Department of Aging has reiterated that “criminal history reports are still required for all applicants.”

Covered employers therefore currently are without guidance from the Department of Aging as to how to evaluate applicants who have a conviction for a crime listed in the Act. Accordingly, employers should keep in mind that Pennsylvania law prohibits employers from using information that is part of a criminal history record information file to decide not to hire an individual unless the felony or misdemeanor conviction relates to the applicant’s suitability for employment in the position for which he has applied. 18 P.S. § 9125. In addition, employers in Pennsylvania must notify an applicant in writing if the decision not to hire is based in whole or part on criminal history record information. 18 P.S. § 9125.   Also keep in mind that the Equal Employment Opportunity Commission (“EEOC”) and the Federal Trade Commission (“FTC”) issued guidance in 2014 (see our earlier update from March 25, 2014) requiring that background checks not be used in a way that unlawfully discriminates against any protected group. The EEOC has cautioned that policies excluding individuals with certain crimes from employment may have a discriminatory impact on individuals who are protected by anti-discrimination laws. Accordingly, it is important that employers look at each situation individually, and carefully assess whether the criminal conviction relates to the applicant’s suitability for the job, whether a sufficient amount of time has passed since the conviction to mitigate its impact on the job, and whether there were other mitigating circumstances that should be considered with respect to the applicant.

Covered employers also need to continue to be careful to ensure that their use of criminal background checks comports with the law. Many jurisdictions, such as Philadelphia, have instituted “ban the box” ordinances that prohibit asking about criminal convictions in the initial application. If a third party is used to perform the criminal background check, the requirements of the Fair Credit Reporting Act must be followed.

The Peake case may generate a new law regarding criminal background histories and employment with older adults. The Department of Aging also may promulgate new rules to provide further guidance to hiring individuals with a criminal background history. We will keep you apprised of developments in this area.

If you have any questions about this or any other employment or labor law issue, please contact Whitney Rahman at (717) 509-7237 or swr@blakingerthomas.com.