Pennsylvania, like many states, has restricted employer use of criminal history in hiring and other employment decisions. Under the Criminal History Record Information Act (CHRIA), Pennsylvania employers may “consider” convictions only if they directly relate to the position for which the applicant seeks employment. In a recent case—McCorkle v. Schenker Logistics, Inc., No. 1:13–CV–3077, 2014 WL 5020598 (M.D. Pa. Oct. 8, 2014)—the plaintiff, Dustin McCorkle, filed suit under the CHRIA, claiming that the defendant, Schenker Logistics Inc., arbitrarily relied on his criminal history in violation of the law.  The Middle District of Pennsylvania did not agree, dismissing the plaintiff’s claim.

By way of background, on its job applications, the defendant asked candidates to provide their conviction histories for the last ten years. The plaintiff answered this question in the affirmative, revealing past convictions for stalking and harassment. Upon completing his application, the plaintiff certified to understanding the consequences of furnishing “any false, misleading, or incomplete information.” After receiving the plaintiff’s criminal records through a third-party vendor, the defendant learned the plaintiff did not disclose all of his convictions (including several convictions for drug offenses) on his job application and, as a consequence of these misrepresentations, his conditional offer of employment was revoked. The plaintiff claimed that the defendant’s actions violated the CHRIA.

The Court held that the CHRIA “does not preclude an employer from revoking a conditional offer . . . based on a good faith belief than an applicant intentionally withheld material information on his employment application in violation of the employer’s policies.” Stressing that the company did not revoke the plaintiff’s offer “because of his misdemeanor convictions,” but instead for “intentionally misrepresent[ing] his criminal history on his employment application,” the Court determined the defendant “was under no obligation [under the CHRIA] to consider whether [his] convictions were related to his suitability for the position.”

In reaching this decision, the Court also rejected the notion that the plaintiff did not have to reveal the convictions in question because they were, in his opinion, unrelated to the position.  “Such a determination is to be made by the employer, not the applicant,” the Court opined.

The plaintiff also claimed that the defendant violated the CHRIA by failing to notify him in writing, as the statute requires, “if the decision not to hire [him] [is] based in whole or in part on criminal history record information.” The Court held that the defendant was under no such obligation given that it had rescinded the plaintiff’s offer based on the misrepresentations of his criminal history, not the criminal history itself. That being said, the Court footnoted that the defendant had satisfied the CHRIA’s notice requirement when it sent the plaintiff a letter advising him that his offer had been rescinded based on the results of the “consumer report” it received from the third-party vendor.

The Court’s decision is a positive development for employers in Pennsylvania who decide to take adverse action based upon misrepresentations of criminal history in job applications and related documents. Stay tuned to see if the plaintiff appeals to the Third Circuit.

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Photo of Joseph O’Keefe Joseph O’Keefe

Joseph C. O’Keefe is a partner in the Labor & Employment Law Department and Co-Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Joe is an experienced trial lawyer who, for more than 30 years, has litigated employment disputes of all…

Joseph C. O’Keefe is a partner in the Labor & Employment Law Department and Co-Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Joe is an experienced trial lawyer who, for more than 30 years, has litigated employment disputes of all types on behalf of employers, before federal and state courts, arbitral tribunals (e.g. FINRA and AAA), and state and federal administrative agencies throughout the U.S. Joe has litigated employment-related lawsuits alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblowing, wage and hour violations, Title IX violations, breach of contract, defamation, fraud and other business related torts. Joe’s practice includes representing clients in complex class and collective litigation, including alleged violation of state and federal pay equity laws, violations of wage and hour laws and discrimination claims. Joe’s experience includes appellate work in both federal and state courts.

In addition to his extensive litigation practice, Joe regularly advises employers, writes and speaks on a wide range of employment related issues. He counsels clients concerning pay equity, use of Artificial Intelligence in the workplace, management of personnel problems, ADA/FMLA compliance, reductions in force, investigation of employee complaints, state and federal leave laws, wage and hour issues, employment policies and contracts.

Joe represents employers in a variety of industries including financial services, higher education (colleges and universities), pharmaceuticals/medical devices, health care, technology, communications, fashion, consumer products, publishing, media and real estate. He frequently writes articles concerning developments in the law and speaks at seminars concerning legal developments in the labor and employment law field.