United States: Pennsylvania Court Rules Background Screening Law Unconstitutional

On December 30, 2015, the Commonwealth Court in Pennsylvania unanimously found the Older Adults Protective Services Act's (the Act) lifetime prohibition on the ability of individuals with convictions to hold certain jobs in nursing homes and long-term care facilities to be unconstitutional on its face, under its interpretation of the Pennsylvania state constitution.1  Specifically, the court held that the lifetime ban provisions violate a convicted individual's due process rights because the individual is penalized for engaging in conduct that may have happened decades ago and is presumed unfit for the jobs at issue.  The court also concluded that the law's lifetime ban on the ability of convicted individuals to work for these types of employers is not "substantially related" to the purpose set out in the Act, which is to protect older persons from abuse, neglect and exploitation. 

Until any appeal period lapses or any appeal is decided, and while new legislation is considered, the court's decision creates substantial uncertainty for covered employers in Pennsylvania regarding disqualifying criminal record offenses.   

History of the Older Adults Protective Services Act

In 1987, the Pennsylvania General Assembly enacted the Act, which was amended in 1996 to add a requirement that all applicants seeking employment in a facility covered by the Act, as well as incumbent employees with less than two years of service, submit to a criminal background check.  The amendments established two categories of past criminal convictions: (1) those criminal convictions that disqualified an individual from obtaining or continuing employment regardless of the date of the conviction (category one), and (2) those criminal convictions that disqualified an individual where the conviction had occurred within the past 10 years (category two). 

Category one convictions included murder, rape and sexual assault.  A conviction of a category one offense imposed a lifetime ban on, or immediate discharge from, employment in an Act-covered facility.  Category two crimes included, among others, felony drug violations, aggravated assault, kidnapping, arson, robbery, and felony or misdemeanor theft offenses.  A conviction of a category two criminal offense imposed an employment ban for a period of 10 years.  The General Assembly immediately amended the amendment to remove the 10-year ban for the category two crimes, which resulted in a lifetime ban from employment with cover facilities for both category one and two crimes. 

The General Assembly also immediately amended the Act to require criminal background checks on those with less than one year of service with covered facilities as of July 1, 1998 (as opposed to two years in the original bill).  If the report disclosed a disqualifying conviction, the facility was required to terminate an employee who had less than one year of employment.  The facility was not required to terminate someone with more than one year of employment, but that individual was banned from being hired by another facility.

Previous Challenge to the Act

The Act's employment ban prompted its first constitutional challenge in Nixon v. Commonwealth.2  In that case, the court held that the criminal record history-based employment ban was unconstitutional as applied to the individuals at issue in Nixon.  Three individuals and a private employer who had been forced to terminate qualified individuals (including two of the three plaintiffs) challenged the law's constitutionality in a declaratory action.  All three individuals had been convicted of offenses (drug possession, larceny and armed robbery) between 20 to 30 years ago.  They had no further criminal history and, before the bans went into effect, had performed similar jobs without incident.  The court held that the facts "vividly illustrate constitutional infirmities present in [the Act] and the draconian impact of its enforcement.  They further demonstrate the arbitrary and irrational nature of the challenged provisions and establish that no rational relationship exists between the classification imposed upon Petitioners and a legitimate governmental purpose."  Thus, the criminal records prohibitions were unconstitutional as applied to the petitioning individuals and employer.  The court ordered that the employees were entitled to seek employment at a covered facility and that the employer was entitled to hire them.  The Supreme Court affirmed.  Nixon v. Dep't of Pub. Welfare, 576 Pa. 385, 405 (Pa. 2003).3 

The General Assembly did not amend the Act in response to the court's holding in Nixon.  In response to Nixon, however, the Pennsylvania Department of Aging instituted an "interim policy" providing that it would not sanction any covered facility that hired or continued to employ an individual who could document a minimum of five years aggregate employment, after conviction or release from incarceration, in care-dependent services.4

Court Now Finds the Act Unconstitutional On Its Face

In April 2015, five individuals and a non-profit social service provider (petitioners) filed a petition for review under the Commonwealth Court's original jurisdiction challenging the constitutionality of the Act's lifetime employment ban provisions.  One of the petitioners was a mental health and chemical dependency facility that, prior to enactment of the Act, had hired individuals with criminal convictions who had rehabilitated themselves.  That facility found these individuals to be valuable employees.  However, because of the Act, the employer had been forced to refuse to employ individuals with certain convictions.  The facility argued that the "employment ban [had] negatively impacted [its] ability to provide the best possible services to its clients." 

Relying on statistical data, the petition for review argued that "the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually 'loses any meaningful value in predicting future criminal conduct.'"  The petition cited to the United States Equal Employment Opportunity Commissions' 2012 guidance on the use of conviction and arrest records for employment purposes, which notes that criminal history employment exclusions have a disparate racial impact and "recommend[s] that prospective employers assess employment eligibility by considering the nature of the crime, the time elapsed, and the nature and requirements of the particular job."  The petition challenged the constitutionality of the Act for the reasons found in Nixon and also argued a number of other reasons for the court to find the Act unconstitutional. 

The court agreed with the petitioners and found the unconstitutional on its face for two separate reasons.5  First, a lifetime employment ban for anyone convicted of an enumerated crime at any time, with a grandfather clause for employees with identical convictions employed for one year at a facility as of July 1, 1998 "does not bear a real and substantial relation to the stated goal of protecting older adults from 'abuse, neglect, exploitation and abandonment.'"  In other words, the court found no rational basis for assuming that convicted individuals with more than one year of service did not pose a threat to older adults, but then "treat all other employees and applicants [with convictions] as incapable of rehabilitation and forever a threat to older adults."

Second, the Act's irrebuttable presumption that any individual with a certain conviction would forever pose a risk to the elderly could not withstand constitutional scrutiny.  According to the court, the lifetime ban infringed on the affected individual's due process rights and reasonable alternatives existed to determine whether in fact an individual would pose a risk if allowed to work in a covered facility.  Moreover, the court found that the statutory irrebuttable presumption was "not universally true" given that the Act allowed convicted individuals working for more than one year as of July 1, 1998, to continue working.  This being the case, the court explained "it defies logic to suggest that every person who has at any time been convicted of any of the crimes listed in [the Act], including misdemeanor theft, presents a danger to those in an Act-covered facility." 

Implications for Employers

Employers covered by the Pennsylvania Older Adults Protective Services Act are presently without direct guidance on how to consider criminal background checks for their new employees.  Although the Pennsylvania Department of Aging instituted an interim policy after the Nixon decision which allowed (but did not require) covered employers to hire certain ex-offenders despite the law's lifetime bar, the exception provided by that interim policy was a narrow case-by-case consideration without overall guidance.  Further, in annual audits the Department often rejected employers' individualized considerations in hiring ex-offenders.  Thus employers who hired offenders with any old conviction on the list risked challenge from the Department.  As of the time of this writing, the Department of Aging had posted a brief notice on its website regarding Peake, noting that it is evaluating its policies in light of the decision.6  Covered employers should monitor the Department of Aging website for any new developments.  Until an amended law is passed providing more clarification or other action takes place (such as on an appeal), the lifetime bar in the Act is stricken but no new guidelines are established in its place.  Covered Pennsylvania employers will have to carefully assess situations concerning the hiring of employees based on general state law which requires that consideration of any criminal conviction be related to the job being performed.

In this regard, employers should continue to be mindful of the EEOC's criminal records guidance,7 Pennsylvania state law regarding criminal background check decisions,8 and Philadelphia's recently amended "ban the box" ordinance.9  In addition, employers making employment decisions based on criminal record reports obtained from third-party consumer reporting agencies must continue to abide by the requirements of the Fair Credit Reporting Act.10


1. Peake v. Commonwealth, No. 216 M.D. 2015 (Pa. Commw. Dec. 30, 2015).

2. 789 A.2d 376 (Pa. Cmwlth. 2001).

3. The Supreme Court affirmed on the alternative basis that the law was irrational because it distinguished between individuals who had been employed for at least a year at a covered facility when the requirements went into effect and those that had not, but had previously been employed without incident at covered facilities.  The Supreme Court did not explicitly reject the Commonwealth Court's analysis, however.

4. See http://www.portal.state.pa.us/portal/server.pt/community/self_study_course/18031/unit_4__criminal_background_checks/616720 ("Nixon Decision").

5. The court also found the Act unconstitutional as applied to the petitioners for the same reasons as those in Nixon.

6. See http://www.aging.pa.gov/organization/advocacy-and-protection/Pages/Criminal-History-Background-Checks.aspx#.Vp4XS_krLIV.

7. See Jennifer Mora and Rod Fliegel, EEOC Settles Background Check Litigation with BMW, But Also Faces Steep Attorneys' Fees in Freeman Case, Littler Insight (Sept. 22, 2015).

8. See Jennifer Mora and William Simmons, The Old (Law) is New Again: Plaintiffs Increasingly Using Old Pennsylvania Law to Challenge Background Check Decisions, Littler Insight (Nov. 7, 2014).

9. See William Simmons and Thomas Benjamin Huggett, Beyond "Ban the Box" – Philadelphia Makes Sweeping Changes to Criminal Records Screening Ordinance, Littler Insight (Dec. 16, 2015).

10. See Jennifer Mora, Federal Courts Increase Scrutiny of Employer Compliance with the FCRA's Adverse Action Requirements, Littler Insight (Jan. 4, 2016); 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 ASAP (Aug. 1, 2014).

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.


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.