Pennsylvania, Philadelphia Update Criminal Screening Laws

Pennsylvania and Philadelphia have recently enacted significant changes affecting how employers conduct criminal background screenings. House Bill Number 689 (HB 689), signed into law on December 14, 2023, and effective as of February 12, 2024, introduces amendments to Pennsylvania’s criminal record expungement laws and addresses employer immunity related to hiring individuals with expunged records. Concurrently, Philadelphia has expanded its ban-the-box law to include a wider range of criminal offenses that employers can consider.

Under HB 689, employers are granted immunity from liability for claims arising from the effects of expunged records or the lawful use of criminal record history information if an applicant voluntarily discloses an expunged conviction. This provision aims to clarify potential ambiguities in 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.

The legislation also extends the scope of automatic expungements to include cases that have been pardoned. The Pennsylvania Board of Pardons is mandated 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 are prohibited from using 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 significant aspect of the law. Individuals who have been free from conviction for seven years and meet other criteria can now petition for limited access, a reduction from the previous ten-year threshold. Additionally, the law clarifies the categories of offenses eligible for limited access petitions.

Importantly, this statewide legislation does not change the existing requirements regarding an employer’s general use of criminal record history. Pennsylvania employers are generally obligated to consider only job-related misdemeanor and felony convictions in their hiring decisions.

In parallel with HB 689, Philadelphia has amended its Fair Criminal Record Screening Standards Ordinance, effective January 19, 2024. This amendment explicitly addresses how employers should treat 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 revise their criminal background screening policies and procedures to accommodate the expanded eligibility for limited access and the prohibition on using specific types of criminal history record information. It is essential to ensure that updated policies align with amended laws, particularly regarding the consideration of expunged records, exonerated convictions, and limited access status. By making these revisions, employers can help mitigate legal risks and maintain compliance while making informed and fair hiring decisions.