Terminating an Employee for Not Fully Disclosing His Criminal History in an Application for Employment Did Not Violate the Pennsylvania Criminal History Record Information Act

In McCorkle v. Schenker Logistics, Inc., 2014 WL 5020598 (M.D. Pa. October 8, 2014), the court held that terminating an employee for not fully disclosing his criminal history, as requested in an employment application, did not violate the Pennsylvania Criminal History Record Information Act (CHRIA), 18 Pa. Con. Stat. §9125, because the termination was based on the applicant's misrepresentation, rather than the criminal convictions.

In McCorkle, the employer required applicants to fully complete and sign an application for employment and informed them that they could be disqualified or terminated for providing any false, misleading or incomplete information. In response to a question regarding whether the applicant had been convicted of or plead guilty to any crimes during the past ten years, the applicant disclosed only that he had been convicted of “stalking [and] harassment while trying to gain custody of his daughter.” The employer offered the employee a repair technician position, contingent on passing a background check.

When the employer received the applicant's criminal background check, it discovered several other convictions that the applicant had failed to disclose. The convictions included public drunkenness, disorderly conduct, possession of controlled substances and driving under the influence of marijuana. The employer provided the applicant with the opportunity to explain the inconsistencies between his application and his criminal background report (consistent with the Fair Credit Reporting Act). The applicant did not do so within the time frame provided and the employer revoked the offer of employment.

The applicant challenged the revocation under the CHRIA on two grounds. First, he claimed that contrary to the CHRIA, which prohibits employers from denying employment based on felony or misdemeanor convictions that are unrelated to the applicant's suitability for the position, the employer relied upon his criminal history to revoke his employment offer without considering how it affected his suitability for the repair technician position. The court, however, held that the employer lawfully revoked the offer of employment because the applicant failed to fully disclose his full criminal history and, therefore, never had to reach the question of whether the convictions rendered him suitable for the position.

Second, the applicant claimed that the employer violated the CHRIA by, as required under the statute, failing to notify him in writing that the decision to revoke his contingent offer of employment was based on his criminal history information. Again, however, the court held that “the disqualification was not based on [his] criminal history record information, and therefore, [the employer] was under no obligation to comply with the CHRIA's notification requirement.”

This case serves as a good reminder to (1) have hiring policies that explicitly require applicants to provide complete and honest information; (2) phase the review of an application so as to analyze the applicant's honesty before considering the import of any criminal history; and (3) abide by the applicable federal, state and local laws that restrict and regulate employers' use of criminal background information. These laws include the Fair Credit Reporting Act, Title VII of the Civil Rights Act considerations, state laws (like the CHRIA) and so-called “Ban the Box” ordinances that prohibit inquiries into criminal history until after an offer of employment has been extended.