Summary

Earlier this month​, the Middle District of Pennsylvania ruled that the Pennsylvania Criminal History Record Information Act (“CHRIA”) does not prohibit an employer from refusing to hire an applicant based upon the applicant’s failure to respond truthfully to questions about his criminal history. McCorkle v. Schenker Logistics, Inc., No. 1:13-CV-3077 (M.D. Pa., Oct. 8, 2014). While employers should welcome the court’s decision, it is limited in scope, and employers who consider an applicant’s criminal history in the hiring process must be mindful of other federal, state and local laws governing the manner by which such information may be obtained and the extent to which it may be used.

According to the court, the relevant facts in McCorkle v. Schenker Logistics, Inc. are as follows: Plaintiff applied for a repair technician position at Schenker Logistics, Inc. (“Company”). In its employment application, the Company asks applicants to disclose all crimes of which they have been convicted (or to which they have pled guilty) in the past ten years and to provide a brief description of any convictions or guilty pleas. The application also includes a certification that false, misleading or incomplete answers would be grounds for disqualification for consideration for employment. Plaintiff disclosed on his employment application that he had been convicted of “stalking and harassment while trying to gain custody of [his] daughter.” However, the Company conducted a criminal background check and discovered that Plaintiff had been convicted of or pled guilty to several other crimes which he had not disclosed on his application. The Company forwarded the criminal history report to Plaintiff and provided him an opportunity to explain any inconsistencies or correct any errors in the report. After a week, having received no response from Plaintiff, the Company revoked Plaintiff’s offer of employment. In its revocation letter, the Company stated that it revoked Plaintiff’s offer based in whole or in part on the criminal history information it had forwarded to Plaintiff for his review.

Plaintiff sued, alleging that the Company violated CHRIA by arbitrarily using his criminal history to deny him employment because his convictions were unrelated to the position he sought. CHRIA states that “[w]henever an employer is in receipt of information which is part of an employment applicant’s criminal history record information file, it may use that information for the purposes of deciding whether or not to hire the applicant, only in accordance with this section.” It goes on to state that “[f]elony 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.”

The Company moved for summary judgment, arguing that it was within its rights to revoke the conditional offer because Plaintiff had misrepresented his criminal history on the application. The Company argued that its use of the criminal history information was outside the purview of CHRIA because they were using the criminal history to verify the accuracy of Plaintiff’s representations on his application, not as a basis to deny him employment. Specifically, the Company revoked Plaintiff’s offer because he intentionally withheld information about his criminal convictions during the application process, not because of the underlying criminal history itself. The Company asserted that it did not even evaluate the criminal history after using it to confirm Plaintiff’s incomplete disclosure on his application.  

The court noted the legally significant distinction between revoking Plaintiff’s offer of employment because of his criminal convictions as opposed to his failure to fully disclose same as required by the application. While the former would implicate the CHRIA, the latter does not. The court also swiftly rejected Plaintiff’s argument that he did not disclose the other crimes because he did not believe they were relevant and he knew they would show up on his background check, reasoning that under CHRIA, it is the employer’s decision, not the applicant’s, to determine which criminal convictions are job-related and which are not.

Employers must be aware of the panoply of laws that allow inquiry into criminal history and then restrict its use in the employment setting. While the court’s decision is helpful with regard to clarifying the limits of CHRIA, and how employer policies and procedures can reduce liability when using criminal background checks to inform hiring decisions, it does not address a host of other laws regarding employers’ acquisition and use of applicants’ criminal history information in the recruitment and hiring process, such as the Fair Credit Reporting Act, Title VII disparate impact jurisprudence and “Ban the Box” ¹ laws which have been enacted in numerous jurisdictions. Accordingly, employers are advised to consult with counsel to ensure compliance with these various laws.

1. Counties or cities in the following states have “Ban-the-Box” legislation in place: California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington and Wisconsin. New Jersey just passed a state-wide “Ban-the-Box” law.