One of the more controversial topics in public employment is the role that a person’s criminal past should play in hiring decisions. On one side is the "ban the box" movement, which seeks to bar employers from asking people, in an initial employment application, if they have ever been convicted of a crime. On the other side is the movement towards expansion of mandatory criminal background checks and categorical bans on employment in certain public sector jobs based on a person’s criminal history, as evidenced by recent amendments to the Public School Code of 1949 and the Child Protective Services Law.
The Commonwealth Court weighed in on this debate in Peake v. Commonwealth (Dec. 30, 2015). Peake involved a constitutional challenge to provisions in the Older Adults Protective Services Act that barred individuals with certain criminal convictions from employment in the facilities that care for older adults.
The petitioners in Peake were five individuals who wished to work in senior care facilities but who had disqualifying criminal convictions, and a senior care facility that wished to employ them. The five individuals had convictions that were, in some cases, over thirty years old, and in other cases were for offenses such as receiving stolen property and writing bad checks. They claimed that the Act’s employment bar violated their rights to due process under the Pennsylvania Constitution because it precluded them from lawful employment for which they were otherwise qualified and, in the case of the facility petitioner, the Act interfered with its right to conduct lawful business.
This was not the first time that the Act’s employment restrictions had been challenged in court. The Act’s employment ban was passed in 1997, and prompted a legal challenge that went up to the Pennsylvania Supreme Court in 2002 in Nixon v. Commonwealth. Of particular importance in Nixon was the fact that the 1997 amendments to the Act had a "grandfather" clause that allowed a person who had already been employed by a senior care facility for one year prior to July 1, 1998 an exemption from the ban, even though they had an otherwise disqualifying criminal conviction. The Nixon Court ruled that the Act’s employment ban "was not rationally related to the Commonwealth’s interests in protecting elderly citizens," and ordered that the plaintiffs in that case be permitted to work in senior care facilities.
So what happened that caused the Peake petitioners to file suit nearly 13 years later? Actually, nothing. The General Assembly did not amend the Act in response to the Nixon ruling. The Department of Aging issued an "Interim Policy" that purported to loosen the Act’s employment restrictions in accordance with Nixon. That, however, was not enough for the Peake petitioners, who believed (correctly so, as it turns out) that the Department didn’t have the authority to change the Act through the adoption of a policy and, therefore, wanted what the Nixon court had fallen just short of doing: a ruling that the Act’s employment restrictions are unconstitutional on its face and a permanent injunction against its enforcement.
The Commonwealth Court in Peake sided with the petitioners, declared the Act’s lifetime employment ban unconstitutional, and permanently enjoined its enforcement. The Court agreed that there was "no rational basis" in the Act’s distinction between those with a criminal conviction who had worked for a senior care facility for a year prior to July 1, 1998 (the "grandfathered group") and those with the same conviction who did not.
More importantly, the Court wrote about blanket employment bans and the implications as to other statutes that contain blanket bans. "The Act’s current blanket prohibition," the Court wrote, "lacks fine-tuning because it treats all the enumerated crimes, regardless of their severity, as the same even though they present very different risks of employment." The Court noted the EEOC’s 2012 guidance regarding utilization of an applicant’s criminal history in hiring decisions and opined that senior care facilities "should have the opportunity to assess the situation and exercise their discretion to employ an applicant found to be sufficiently rehabilitated and a good fit for the job," which the Act prevented them from doing.
Why is this decision significant in the broader public employment context? Because it signals clear skepticism by the Commonwealth Court of broad-reaching claims that categorical lifetime bans on public employment based on certain criminal convictions can ever serve a legitimate governmental interest. The Peake decision suggests that, as a constitutional matter, public employers must at least have the ability to make hiring decisions on a case-by-case basis, else persons who are otherwise qualified to do the job will be unfairly denied the opportunity to do so.
How will this ruling be applied to other governmental employers such as school districts (where Section 111.1 of the Public School Code contains similar lifetime bans on school employment for certain enumerated convictions) or entities subject to the recently-amended Child Protective Services Law? That remains to be seen. However, any public employer that utilizes a criminal conviction as a screening criteria â€“ whether due to a statutory mandate or by policy â€“ would be well-advised to review the Peake decision with its solicitor.