A growing number of states and localities have enacted laws that restrict employers from considering certain types of criminal records in hiring and other personnel decisions.  Though many of these laws are more recent, Pennsylvania’s Criminal History Record Information Act (“CHRIA”) has been on the books for more than three decades.  The law, which prevents employers from considering applicant convictions that do not reasonably relate to the position, has increasingly been the subject of litigation in the last year.

Specifically, Pennsylvania courts have entertained “CHRIA cases” where the applicant allegedly lied on a job application about his or her criminal history.  Last month, we blogged about a recent case decided under the CHRIA—McCorkle v. Schenker Logistics, Inc., No. 1:13–CV–3077, 2014 WL 5020598 (M.D. Pa. Oct. 8, 2014)—in which the Middle District of Pennsylvania held that the law “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.”  A few months earlier, in Hoffman v. Palace Entertainment, No. 12-cv-06165, 2014 WL 1233669 (E.D. Pa. Mar. 25, 2014), the Eastern District of Pennsylvania denied a motion to dismiss a CHRIA claim (albeit on the pleadings) where the plaintiff simply alleged that the defendant refused to hire him based on an old arrest (even though the defendant claimed that it rescinded the offer on account of the plaintiff’s misrepresentations about the arrest).

Pennsylvania courts also recently have considered what constitutes a “hiring decision” under the CHRIA.  In Negron v. The School District of Philadelphia, 994 F. Supp. 2d 663 (E.D. Pa. 2014), the Eastern District of Pennsylvania refused to dismiss a CHRIA claim (again on the pleadings), holding that, although the statute only applies to hiring decisions, an employer’s decision to terminate an employee who was hired “subject to the results of a pending background check” still could constitute a “hiring decision” under the law.  Several months later, in Ripley v. Sodexo, Inc., No. 14-cv-75, 2014 WL 4293117 (W.D. Pa. Aug. 29, 2014), the Western District of Pennsylvania held on summary judgment that terminating an existing employee based on the results of a criminal background check was not a “hiring decision” under the CHRIA.

Given this flurry of cases, Pennsylvania employers should continue to exercise caution when making employment decisions regarding job applicants and employees with criminal records.  We will keep you posted on new developments arising under the CHRIA.