New Legislation Affecting Criminal Background Screening in Pennsylvania
Pennsylvania and Philadelphia have implemented changes that impact employer practices regarding criminal background screening. Read more about these changes at the state and city level.
Pennsylvania and Philadelphia have implemented changes that impact employer practices regarding criminal background screening. House Bill Number 689 (HB 689), enacted on December 14, 2023, and effective as of February 12, 2024, introduced amendments to Pennsylvania law concerning the expungement of specific criminal record information and addresses employer immunity when hiring individuals with expunged records. Meanwhile, changes to Philadelphia’s ban-the-box law expand the scope of criminal offenses that employers can consider.
Under Pennsylvania HB 689, employers are granted immunity from liability for claims associated with the effects of expunged records or the lawful utilization of criminal record history information if an applicant voluntarily discloses an expunged conviction. This provision aims to clarify potential ambiguities under existing state law regarding an employer’s liability for negligent hiring when hiring an individual with an expunged criminal record who subsequently engages in misconduct.
Furthermore, the legislation extends the scope of automatic expungements to include pardoned cases. The law mandates the Pennsylvania Board of Pardons to notify the Administrative Office of Pennsylvania Courts (AOPC) quarterly of any pardons granted, prompting the AOPC to direct the relevant Court of Common Pleas to expunge the corresponding records. Private entities cannot utilize expunged criminal history record information for employment, housing, or school purposes except as required by federal law.
Expanding eligibility for Pennsylvania’s existing limited access status for criminal records is another crucial aspect of the law. Individuals free from conviction for seven years and meeting other criteria can now petition for limited access, a reduction from the previous ten-year threshold. Additionally, the law clarifies categories of offenses eligible for limited access petitions.
It’s important to note that this statewide legislation does not alter the existing requirements regarding an employer’s general use of criminal record history. Under current law, Pennsylvania employers are generally obligated to consider only job-related misdemeanor and felony convictions in their hiring decisions.
In tandem with HB 689, Philadelphia has amended its Fair Criminal Record Screening Standards Ordinance, effective January 19, 2024. This amendment explicitly addresses employer treatment of convictions subject to “exoneration,” defined as reversing or vacating a conviction by pardon, acquittal, dismissal, or other post-conviction re-examination by the court or government official. The ordinance generally prohibits employers from denying employment based on convictions subject to exoneration.
Employers may need to adjust their criminal background screening policies and procedures to account for the expanded eligibility for limited access and the prohibition on utilizing specific types of criminal history record information. It’s imperative to ensure that the updated policies align with the amended laws, particularly regarding the consideration of expunged records, exonerated convictions, and limited access status. Through revisions to policies and procedures, employers can help mitigate legal risks and maintain compliance while making informed and fair hiring decisions.
Release Date: February 22, 2024
Alonzo Martinez
Alonzo Martinez is Associate General Counsel at HireRight, where he supports the company’s compliance, legal research, and thought leadership initiatives in the background screening industry. As a senior contributor at Forbes, Alonzo writes on employment legislation, criminal history reform, pay equity, AI discrimination laws, and the impact of legalized cannabis on employers. Recognized as an industry influencer, he shares insights through his weekly video updates, media appearances, podcasts, and HireRight's compliance webinar series. Alonzo's commitment to advancing industry knowledge ensures HireRight remains at the forefront of creating actionable compliance content.