Denied Employment Based on Criminal Record

[RN182]

My question involves labor and employment law for the state of: PA


My question involves criminal records for the state of: PA

I recently had a job interview and everything went well. I was offered the position (nursing), however, when asked for my SS number to do the background check, I gave the required information, and told the employer I had a summary offense retail theft from 3+ years ago. After speaking to her director, she told me I could not have the position because I had a criminal history. Basically, what I want to know, is it LEGAL for an employer to deny employment based on this charge? My official report did not come through yet (although it is definitely on the check). I'm upset I couldn't even talk to the director to explain my foolish decision, which I probably regret more than ANYTHING in my life. I also found this:


A. Pennsylvania Law Limiting Consideration of Criminal Records

A Pennsylvania statute provides, "Felony and misdemeanor convictions may be

considered by the employer only to the extent to which they relate to the applicant's suitability

for employment in the position for which he has applied.” 18 Pa. C.S. § 9125(b). There has

been almost no guidance under state law on the issue of “suitability” under this law. However,

one of the few cases construing this statute has been determined that it means that employers

may

only consider felony and misdemeanor convictions. Cisco v. United Parcel Services, Inc.,

476 A.2d 1340 (Pa. Super. 1984). Consequently, under this statute, employers may

not

consider

arrest records, juvenile adjudications and summary offense convictions.


Wouldn't that mean it was not legally allowable to deny me for this position based on my BG check, AFTER being offered the job?
I don't plan on filing any charges, I'm just curious.
I'm upset about the entire situation and can't wait until it has been 5 years since this charge to get it expunged.
Thank you!

[antrc170]

You are going to be out of luck with the theft charge because it applies to pretty much any employment. The company can easily argue that you have a history of theft and exposure to medications, which carry a high street value, would be too great of a risk for the company to take.

[Beth3]

This may be worth speaking to a local employment law attorney about. My State has a similar statute and it has been VERY narrowly defined by the courts. If your State has similar case law, then it's not very likely that a three year old conviction for shoplifting can be used to lawfully exclude from consideration as a nurse.

[RN182]

Antrc; My theft from 3.5 years ago had absolutely nothing to do with exposure to medications. It occured BEFORE I was in nursing school. I have held another job after this charge, which I dealt with rather large amounts of money. I have had hundreds of hours of clinicals, where I gave numerous medications. They could have at least called numerous references and judged my current character before making such a sudden decision without letting me explain myself. I was a stupid teenager when it happened, and the fact that people DO change and DO grow-up should not mean I am "out of luck" for "pretty much any employment". That's a pretty broad statement to make before even knowing the entire situation - but hey, thanks for the response.

Beth3; I think it upset me so much because the conviction occured before I began my journey as a nurse. It didn't happen last week, or last month, or even while I was in nursing school. I just feel like talking to an attorney will bring up more trouble than it's worth. I just wanted to know because I felt it was incredibly unfair. I was upfront and honest about it, before the BG check even came back (which it still hadn't been back when I was denied the job I already landed).

[antrc170]

RN192

Please understand that I'm not judging you on the incident. Personally I wouldn't consider the charge to be a big deal. I'm only providing the argument that the company can (and probably will) use in defending themselves if you were to pursue a lawsuit. While the clinicals and other positions of responsability are in your favor, the company can still state that they don't want to take the risk.

What the company did is in the gray area of the law. It is not exactly illegal, but it does touch on a sensitive area of discrimination. The only forward is to file a lawsuit. No one can say for sure the outcome of such a suit. My only comment is that the company will argue that theft is theft.

[Beth3]

Beth3; I think it upset me so much because the conviction occured before I began my journey as a nurse. It didn't happen last week, or last month, or even while I was in nursing school. I just feel like talking to an attorney will bring up more trouble than it's worth. I just wanted to know because I felt it was incredibly unfair. I was upfront and honest about it, before the BG check even came back (which it still hadn't been back when I was denied the job I already landed).

More trouble than it's worth? That's your call to make but my hunch is that being denied a nursing position because of this old shop lifting conviction is unlawful. I'm not advising you to sue the employer; I'm simply suggesting you get an expert legal opinion on the relevant case law in your State. If an attorney advises you that the employer's decision is unlawful, then you can decide what to do about it. The solution may be as simple as speaking to the employer and sharing the information you obtained and ask them to rethink their decision since you are qualified for the position as evidenced by their making an offer to you.

BTW, getting the conviction expunged is no guarantee that it still won't show up on a background check.

[RN182]

ANTRC; Sorry I didn't mean to jump on the defensive bus; I'm just totally distraught over the entire situation. I just don't know what to do. I had the job in the bag, was going to start training and all THIS week; than when asked for info for the BG check, I was put on hold, and then ultimately dismissed. I honestly don't think I will file lawsuit, I don't think I would win. I just wanted to know if I had any reason to be upset for this occurence

Beth; I was thinking of e-mailing the person that interviewed me with this information and trying to explain myself, why I'm qualified, and why they liked me in the first place. I just feel like I'm going to piss everyone off that works there. I know with expungement the charge can still come up with FBI fingerprinting, but on a normal PA cop database, it shouldn't come up. I think if you get a record expunged you are way better off than just having it sit on your record, and you can explain the charge has been taken off your record (for the most part). Who knows - at this point I feel like a failure!!

[antrc170]

Who knows - at this point I feel like a failure!!

You're far from a failure. Nursing is one of the toughest and most desire occupational fields at the moment and one that not everyone can handle.

Does it matter if you piss of the people at the company if you're not working there anyway? Send a respectful letter, email or phone call (or even show up in person) and ask to speak with the person in charge of hiring decisions. Maybe you can sway their opinion of you, maybe not but it's still worth a shot.

Not being able to accept this position doesn't discount your training and schooling to date. You'll make it. There are always people who are open minded and able to forgive minor transgressions. We've all made mistakes.

[ESteele]

OP, you will likely “waste your time” by writing management. It is entirely unlikely this employer will reverse its decision because you send an e-mail.

In contrast, you would at least have “a shot” if you retain counsel and counsel sends a demand letter and/or commences a lawsuit under state law. It appears the decision not to hire you may have violated PA law. With a little work (e.g., internet search), you can locate PA attorneys with experience in advancing such lawsuits who would probably be interested in consulting with you.

In addition, as I think you stated, OP, you should explore endeavoring to have the “summary offense conviction” expunged. While the information concerning your conviction may be nonetheless uncovered by a prospective employer during another background check notwithstanding an interim expungement order, it is possible the information will not be disclosed in another check. Also, as a general matter, an expunged conviction is superior to a non-expunged conviction. Moreover, most state expungement statutes prohibit employers from taking adverse employment action against employees or applicants based on expunged criminal records. I have not studied PA expungement law. But, I would bet it provides this type of employment protection.

[Beth3]

Beth; I was thinking of e-mailing the person that interviewed me with this information and trying to explain myself, why I'm qualified, and why they liked me in the first place. I just feel like I'm going to piss everyone off that works there. I know with expungement the charge can still come up with FBI fingerprinting, but on a normal PA cop database, it shouldn't come up. I think if you get a record expunged you are way better off than just having it sit on your record, and you can explain the charge has been taken off your record (for the most part). Who knows - at this point I feel like a failure!!

They've already told you they're going to pull the job offer because of the shoplifting conviction. If they were interested in hearing that you were young, stupid, and would never do anything like this again and take that into consideration in making their decision, they would already have afforded you that opportunity.

Again, I encourage you to get a legal consult on the employer's decision. You may likely run into this again and again with employers in the medical field as you try to find a job in nursing and you seem to prefer being stymied in your career aspirations than getting the necessary legal information so you can be gainfully employed in your chosen field. I don't get it. How is waiting 18 months to request expungement (and however additionally long it takes for that to actually occur) the better option? It could easily take several years until the conviction is actually expunged.