[author: Madeleine Campbell]
Employers often run background checks as a regular part of the hiring process to evaluate candidates. However, in Pennsylvania, employers must consider their legal obligations under the Criminal History Record Information Act (“CHRIA”) when using an applicant’s criminal history in its hiring decisions. A recent court decision, Phath v. Central Transport LLC, made it clear that CHRIA obligations will apply whenever an employer gets criminal history information—no matter how they obtain it.
What is CHRIA?
Under CHRIA, employers can consider felony or misdemeanor convictions only to the extent that they relate to an applicant’s suitability for the job. For example, if an applicant is applying for an accounting job, a conviction for embezzlement may be relevant, whereas a DUI conviction may not be. If an employer does not hire an applicant based “in whole or in part on criminal history record information,” it must provide written notice to the applicant which explains its reasoning.
The Impact of Phath v. Central Transport, LLC
In Phath v. Central Transport, Mr. Phath applied for a truck driving position with Central Transport. When Central Transport informed him that they would conduct a criminal background check, Mr. Phath voluntarily disclosed that he had been convicted of armed robbery and spent time in prison. Central Transport immediately informed Mr. Phath that he would not be hired due to his conviction.
Mr. Phath filed suit against Central Transport alleging its violation of CHRIA by (1) disqualifying him based on his robbery conviction and (2) failing to provide written notice. Central Transport argued that CHRIA does not apply if criminal background information is obtained directly from the applicant. The Third Circuit Court of Appeals disagreed with Central Transport and found that the criminal history disclosed was clearly part of Mr. Prath’s criminal history file which would have been later uncovered. Therefore, the manner in which Central Transport obtained the information did not matter—CHRIA still applied.
What This Means for CHRIA and Employers
The Phath decision reinforces that Pennsylvania employers cannot abandon their obligations simply because an applicant chose to disclose their own criminal history. Often, applicants will reveal this information knowing it will later be discoverable through their criminal background check. If criminal history information is considered during the hiring process, regardless of how it is obtained, employers must comply with CHRIA. Here are some key steps for employers to follow uniformly—regardless of the source—in order to comply with CHRIA (as well as other federal and local laws):
- Analyze criminal history. Only consider convictions that are meaningfully related to the job duties in question. Consider adopting clear criteria for analyzing criminal history information (i.e., nature and severity, time passed, relevance, and any mitigating factors).
- Document the decision and notify the applicant. If an employer declines to hire an applicant, in whole or in part, based on their criminal history background, the applicant must be provided with written notice explaining that reasoning.
- Comply with federal and state law when using a third-party background screening provider.
- Fair Credit Reporting Act (FCRA). If criminal history information is learned from a consumer report, this will trigger obligations under the FCRA.
- Local Ban-the-Box or Fair Chance Laws. Employers should evaluate whether they are subject to any local laws (e.g., Philadelphia’s ban-the-box law) that may restrict employers from inquiring into criminal history during the hiring process.
