United States: The Old (Law) Is New Again: Plaintiffs Increasingly Using Old Pennsylvania Law To Challenge Background Check Decisions

In a climate of increased national scrutiny regarding employer use of criminal background screening, plaintiffs are turning to a provision in the Pennsylvania Criminal History Record Information Act (CHRIA), 18 Pa.C.S. § 9125, as another avenue to challenge employer hiring decisions.1  Thus, Pennsylvania employers should remember to ensure compliance with this law if they reject applicants with criminal records.

Background of CHRIA

Originally passed approximately 35 years ago, the CHRIA provides that Pennsylvania employers may only consider felony and misdemeanor criminal convictions in hiring if the convictions "relate to the applicant's suitability for employment in the position for which he has applied."  The law also requires employers to provide written notice to applicants when a rejection is based in whole or in part on a criminal history.  The law applies to any use of criminal record information, not just use of criminal record information obtained through third-party background screening companies (e.g., consumer reporting agencies).  By its terms, the law applies only to hiring decisions, but some employees have nonetheless filed common law wrongful discharge claims, contending that the law provides a "public policy" to expand its mandates to termination decisions as well.

Remedies Available Under CHRIA

The CHRIA is a fee-shifting statute. 18 Pa.C.S. § 9183.   Thus, individuals who prevail on CHRIA claims may receive an award for attorneys' fees and costs.  In addition, they may receive "actual damages of not less than $100 for each violation."  If the plaintiff demonstrate thats the violation of the CHRIA was "willful," exemplary and punitive damages of $1,000 to $10,000 may be awarded.  The statute does not define a "willful" violation.  The CHRIA also provides for the Attorney General "or any other individual or agency" to seek injunctive relief to compel compliance.

Increasing Litigation Under CHRIA

For many years, claims under the CHRIA were rare, but they are now increasing, as are attempts to expand the reach of the CHRIA beyond its plain text.  Indeed, in the 30 years from the CHRIA's passage until 2011, there were no more than five decisions available in legal research databases that interpreted its substantive employment provisions.  Approximately the same number of decisions issued in just the three-year period of 2011-2013; in the 2014 calendar year, there have been at least four decisions interpreting the statute's employment provisions.

First, plaintiffs are attempting to stretch what it means under the CHRIA for an employer to "consider" convictions in hiring decisions.  In McCorkle v. Schenker Logistics Inc., Civ. No. 1:13–CV–3077 (M.D. Pa. Oct. 8, 2014), for instance, an employer rejected the plaintiff because he did not fully disclose his criminal record in the hiring process.  The employment application asked: "In the last ten years, have you been convicted of, or pleaded guilty to, any crimes (including crimes committed during military service)?"  It then asked the applicant to "briefly describe the details" of the conviction or guilty plea, indicating the date, nature, and place of the offense and the sentence received.  The plaintiff responded affirmatively but disclosed only that he had been convicted of "stalking [and] harassment while trying to gain custody of [his] daughter."  A third-party background check revealed that the plaintiff also had convictions for public drunkenness, disorderly conduct, possession of drug paraphernalia, possession of a controlled substance, and driving under the influence of marijuana, among others.  The employer's decision to reject the plaintiff's application was based on the omission and falsification.  The plaintiff contended the employer was required to undertake an in-depth analysis of whether each conviction was job-related.  Thus, the plaintiff claimed that the decision was prohibited by the CHRIA.  The court disagreed, however, finding that where the employer makes a decision not to hire based on an applicant's material omissions or falsifications on the employment application, the decision is not "because of" the applicant's criminal record history, and therefore the CHRIA does not apply. 

On the other hand, in Hoffman v. Palace Entertainment, Civ. No. 12-cv-06165 (E.D. Pa. Mar. 25, 2014), a court allowed a plaintiff's claim under the CHRIA to survive a motion to dismiss where the employer contended that it decided not to hire an applicant because it did not find him credible in its discussions concerning an arrest that appeared on a background check.  The plaintiff alleged that he was denied employment because of the old arrest, despite the employer's contentions.  Taking all inferences in the plaintiff's favor, the court found the plaintiff's allegations sufficient to plausibly suggest that the decision had been made on the mere fact of the arrest, in violation of the CHRIA.

Second, plaintiffs are attempting to expand the law beyond traditional "hiring" scenarios.  In Negron v. The School District of Philadelphia, 994 F.Supp.2d 663 (E.D. Pa. 2014), a federal district court held that although the CHRIA only restricts hiring decisions, an employer's decision not to retain a provisional employee in a permanent position could be deemed a "hiring" decision for purposes of the CHRIA.  On the other hand, in Ripley v. Sodexo, Inc., Civ. No. 14-cv-75 (W.D. Pa. Aug. 29, 2014), a different federal district court dismissed a CHRIA claim in arguably analogous circumstances.  There, the employer hired an employee conditioned on the employee's successful background screening.  The employee started work, and approximately a year and a half later, the employer initiated a background check under revised procedures (due to a contract amendment) required to place the employee at its client's site.  The check revealed criminal offenses that were undisclosed on the employment application, and the employee was fired as a result.  The court found that the CHRIA did not apply because the decision was to terminate his employment, which it concluded was not a hiring decision.

Practical Guidance

Against the backdrop of increased litigation and attempts to expand the coverage of the CHRIA,  employers should be cognizant of the CHRIA and consider whether an applicant's criminal background history relates to the job before denying employment based on that history.   The statute's plain language requires that criminal history broadly "relate to the applicant's suitability" for a job, which should result in a low threshold for employers to prevail. However, plaintiffs contend the statute's language leaves room to argue whether any given offense truly "relates" to suitability for a job.  In addition, employers must remember that even if the applicant's criminal history is obtained through  a law enforcement agency, such as through FBI fingerprinting or employer searches of Pennsylvania criminal records, the CHRIA requires written notice to the applicant if the decision was made in whole or in part based on the applicant's criminal records.

Further, all employers making adverse employment decisions based on criminal records must be mindful not only of the EEOC's interpretation of Title VII, but related federal and state laws, such as the FCRA and the increasing wave of class claims alleging FCRA violations, and state fair employment laws restricting inquiries into, and the use of, credit history and criminal records.


1.  For more information regarding the increase in Fair Credit Reporting Act (FCRA) litigation against employers, see Rod Fliegel and Jennifer Mora, Weathering the Sea Change in Fair Credit Reporting Act Litigation in 2014, Littler ASAP (Jan. 6, 2014); Rod Fliegel, Jennifer Mora and William Simmons, The Swelling Tide of Fair Credit Reporting Act (FCRA) Class Actions: Practical Risk-Mitigating Measures for Employers, Littler Report (Aug. 1, 2014).  For more information regarding the U.S. Equal Employment Opportunity Commission's (EEOC) attacks on employment screening, see Rod Fliegel and Jennifer Mora, Sixth Circuit Upholds Dismissal of EEOC Suit Against Employer Screening Applicants Based on Credit History Information, Littler ASAP (Apr. 17, 2014).  For the most up-to-date information on the "ban the box" trend, and laws restricting the use of employment credit screening, see Rod Fliegel, Jennifer Mora, Joseph Harkins and Melanie Augustin, Private Sector Employers in the District of Columbia Will Soon Be Required to Comply with a New Law Restricting Their Ability to Rely on Criminal Records for Employment Purposes, Littler ASAP (Aug. 22, 2014); Rod Fliegel, Bruce Young and Jennifer Mora, Nevada is the Latest State to Restrict the Use of Credit Reports for Employment Purposes, Littler ASAP (May 30, 2013).  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

William Simmons
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.