Law Imposing Lifetime Hiring Ban on Ex-Offenders Struck Down
Tim McCarthy on 2/23/2016
In Peake v. Commonwealth, No. 216 M.D. 2015, 2015 Pa. Commw. LEXIS 585 (Pa. Commw. Ct. Dec. 30, 2015), the Commonwealth Court overturned a Pennsylvania law prohibiting individuals who have ever been convicted of certain crimes from working as caregivers for elderly adults. At issue was the constitutionality of a portion of the Older Adults Protective Services Act (the "OAPSA") that prohibited anyone ever convicted of certain violent crimes from working with older adults in Act-covered facilities, but which allowed those who had been working in such a capacity for more than a year when the law was enacted to keep their jobs. The court determined that the distinction made in this "grandfather provision" bore no "real and substantial relationship" to the state´s interest in protecting the older adults.
OAPSA was enacted in 1987 "to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them." 35 P.S. §10225.102. Eventually OAPSA was amended to require that any individuals seeking employment in an Act-covered facility, along with anyone who had been so employed for less than two years, to submit to a criminal background check. Amendments enacted in 1997 expanded the scope of the ban, which now required applicants and employees who had been working for less than a year before the effective dates of the amendments to submit to a criminal background check. Those with convictions for certain violent crimes were barred from ever working in an Act-covered facility. However, the potential lifetime ban did not apply to employees who had been employed for a year or more when the law took effect.
The first constitutional challenge to OAPSA occurred in 2001, in Nixon v. Commonwealth, 789 A.2d 376 (Pa. Cmwlth. 2001). The Commonwealth Court determined that the Act was unconstitutional as to the individual petitioners in the case. The Pennsylvania Supreme Court affirmed, noting that the OAPSA´s employment ban was not rationally related to Pennsylvania´s claimed interest in protecting the elderly because the Act effectively prohibited employment to those who had been employed as caregivers for less than a year, while countless others with disqualifying convictions were grandfathered in. See Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003).
Thus, "[t]he Supreme Court [in Nixon] concluded that there was no rational basis for treating the latter group as capable of rehabilitating themselves and the former group as not capable of rehabilitation." Peake, slip op. at 11. An order was entered in Nixon requiring the individual petitioners in the case to be allowed to seek employment in Act-covered facilities.
Following the Nixon decision, an Interim Policy was adopted by the Pennsylvania Department of Aging. This policy was to be effective until legislative action was taken to amend OAPSA and in relevant part, permits Act-covered facilities to make hiring decisions on a case-by-case basis. However, the Act's criminal history provisions have remained unchanged since 2003 when Nixon was decided.
In Peake, the six petitioners include five individuals who have convictions for crimes that disqualify them from obtaining work in Act-covered facilities, but are otherwise qualified for the positions. The sixth petitioner is a non-profit social service provider that operates Act-covered facilities and alleged that the lifetime ban forced it to refuse employment to qualified candidates. What differentiates this case from Nixon is that a significant issue in Peake is a facial challenge to the constitutionality of OAPSA, in addition to the Petitioners' argument that the law was unconstitutional as applied to them.
The Court determined that OAPSA violated the Petitioners' right to due process, as guaranteed by Article I of the Pennsylvania Constitution. Specifically, the law was deemed unconstitutional because the lifetime employment ban applied only to individuals not employed in a covered facility for at least one year from the effective date of the 1997 Amendments. The Court noted that the law contained "no provision of any other factor, such as the nature of the crime, the facts surrounding the conviction, the time elapsed since the conviction, evidence of the individual's rehabilitation, and the nature and requirements of the job." The Court also determined that the Act impermissibly created an "irrebuttable presumption of unfitness for employment" by imposing the lifetime ban. Notably, however, OAPSA also contains an employment ban for individuals convicted of less serious crimes within the last 10 years. This provision was not challenged in Peake.
Moving forward, Act-covered employers should be aware of the Peake decision and consider applicants on a case-by-case basis, rather than strictly apply OAPSA's employment ban provisions. Background check policies should also be reevaluated for compliance with Peake. The Pennsylvania Office of the Attorney General has not filed an appeal. A PDF of the decision is available here.
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