Criminal history is a major impediment to finding a job for many people in New York City and around the country. This is often true even when the nature of an individual job applicant’s criminal history has little to no relation to the job in question. Some state laws also specifically target people with criminal records, often in very broad terms. In late 2015, the Pennsylvania Supreme Court ruled that one such law, which excludes people with criminal convictions from a particular job market entirely, was unconstitutional. Peake, et al. v. Comm. of Pennsylvania, et al., No. 216 M.D. 2015, slip op. (Pa. Sup. Ct., Dec. 30, 2015).
Many local governments, including New York City, have adopted laws restricting employers’ ability to inquire about criminal history in the initial stages of the hiring process. See, e.g. N.Y.C. Admin. Code § 8-107(10). These laws are often known as “Ban the Box” (BTB) laws, in reference to the check box found on many employment applications asking whether an applicant has a criminal record. BTB laws are an important step in enabling people with criminal history to find employment, but the issue addressed in Peake is different. It involves the categorical exclusion of people with criminal histories from employment in a particular field.
Pennsylvania’s Older Adults Protective Services Act (OAPSA) is intended to protect “older adults,” defined as people age 60 or older, “who lack the capacity to protect themselves.” 35 Pa. Cons. Stat. §§ 10225.102, 10225.103. It prohibits nursing homes, and other facilities that provide care to older adults, from hiring any applicant who has been convicted of a wide variety of offenses, ranging from homicide to various fraud- and drug-related offenses. Id. at § 10225.503. The law gives no discretion to nursing home administrators and actually provides for administrative and criminal penalties for facility administrators who violate these provisions. Id. at § 10225.505.
The plaintiffs in Peake have criminal convictions from many years ago, and they have been denied employment in the elder care field under the OAPSA. They alleged in their lawsuit that their criminal convictions have no bearing on their fitness to work in their chosen field. The first named plaintiff, according to media reports, is 53 years old, and he has had no criminal problems since his arrest at age 18 for riding in what turned out to be a stolen car. This arrest resulted in a felony conviction and three months’ probation in 1981. He went on to get a college degree and become a counselor for men dealing with drug and alcohol addiction, but he found himself subject to a lifetime ban on employment in much of this field.
The Pennsylvania Supreme Court actually ruled that the OAPSA’s employment ban was unconstitutional more than 10 years ago, in Nixon v. Dep’t of Pub. Welfare, 839 A.2d 277 (Pa. 2003). The law remained on the books, however, resulting in the Peake lawsuit. The court unanimously ruled that the employment ban “violates due process…because it goes beyond the necessities of the case and is not substantially related to the [OAPSA’s] stated objective of protecting older adults.” Peake, slip op. at 29.
The criminal conviction discrimination attorneys at Phillips & Associates advocate for employees, former employees, and job applicants in the greater New York City area, helping them assert claims for unlawful employment practices under city, state, and federal laws. To schedule a free and confidential consultation to see how we can assist you, contact us today online or at (212) 248-7431.
More Blog Posts:
New York City’s “Ban the Box” Law Could Put Employers in an Unusual Position, New York Employment Attorney Blog, March 3, 2016
Job Applicant Claims Inaccurate Criminal History Resulted in Lost Job Opportunity, Violated Federal Law, New York Employment Attorney Blog, December 17, 2015
Inquiring About Criminal History in the Initial Stages of the Hiring Process Is Now Unlawful for Most New York City Employers, New York Employment Attorney Blog, October 28, 2015