Unconstitutional to bar former convicts from employment in Penn., court rules for 2nd time
A Pennsylvania elder care company will now be able to hire five men who were previously prohibited from working in the field because of their criminal records after a state court ruled the ban was unconstitutional. Again.
The men had been convicted of crimes between 15 and 34 years ago; none had reoffended since. Their transgressions included theft, drug possession and bouncing checks. Some never served a day in jail. Yet none of them were allowed to work in an elder care facility, even if they were imminently qualified for a position in the field.
Tyrone Peake, for instance, rode with friends in a stolen vehicle when he was 18. He never drove the car ‒ he didn’t know how. He was convicted of attempted theft of an automobile and served three years of probation, barring him from working full-time in an elder care facility.
"I've been fired from three jobs," Peake told NPR in April, "because [of] having a criminal record. And my record is like 32 years old, and I haven't been in trouble since then."
Prior to 1996, Resources for Human Development, Inc. hired people with criminal convictions “who had rehabilitated themselves and found these persons to be valuable employees,” the company said in court documents. After the General Assembly passed a law preventing the hiring of those with certain types of criminal records from working with the elderly, the company found that it was no longer able to provide the best possible services to its clients.
The General Assembly amended its Older Adults Protective Services Act in 1996 to add a chapter on criminal history for employees who care for older adults requiring applicants and those employed at covered facilities to submit to a criminal history records check. It also established two categories of past convictions that disqualified an individual from being hired, including those that fell under federal or out-of-state jurisdictions.
The first are those offenses that permanently disqualify the person, regardless of the date, such as murder, rape and other sexual assault crimes, indecent assault, incest, and sexual abuse of children.
The second set of disqualifiers are those convictions that occurred within the last 10 years, such as drug offenses, aggravated assault, kidnapping, arson and burglary. It also includes convictions of at least two misdemeanors related to forgery, endangering the welfare of children, dealing in infant children, retaliation, prostitution, obscene and sexual materials, and corruption of minors.
"It is an absolute bar that lasts for life and covers any position in any covered facility," Tad Levan, a lawyer at the Levan Law Group, told NPR. "There is no provision in the law for either an affected individual or for an employer who wants to hire an affected individual to prove this person is capable and fit for the job."
A 1997 amendment required all applicants and employees who had been working at a covered facility for less than a year to submit to a criminal history record report. Facilities were required to discharge any employee in this subgroup who had a disqualifying conviction, but were not required to fire those who had been working at the facility for longer than a year.
The Pennsylvania Supreme Court found the law unconstitutional 14 years ago, but didn’t actually strike the legislation from the books. While the high court noted that an employment ban may be desirable in some circumstances to protect “the elderly, disabled, and infirm from being victimized,” it found that the effect of the law was discriminatory because it allowed “innumerable individuals with disqualifying criminal records to continue working with the purportedly protected [older adult] population solely because they had maintained a job in a covered facility for the year preceding the effective date of the chapter.”
In response, the Pennsylvania Department of Aging adopted an interim policy that stated that “a person with a disqualifying criminal record can become eligible for employment by working five years in dependent-care work after the conviction or release from prison, whichever occurs later.” The General Assembly declined to update the legislation, however, leaving the petitioners in legal limbo. So Resources and the five men decided to sue, using the same lawyers as in the previous case.
"We find that most of our clients are not people coming just out of prison or just off of a criminal record," Janet Ginzberg, who works in the employment unit at Community Legal Services of Philadelphia, one of the groups helping with the new lawsuit, told NPR. "[When our] clients come to us, often they are five, 10, 20 years away from their conviction, and they're still having trouble finding a job."
On Wednesday, a Commonwealth Court panel unanimously ruled that the criminal convictions ban is still unconstitutional.
