Job Offer Revoked - Employer Used Prohibited Information

[gurning]

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

After being given an employment offer, I was sent a Pre-Adverse Action notice based on information in my background check. The first was for a charge that was withdrawn and the second was for a summary charge.

I've been googling a lot trying to find out if this is legal, and from the info I gathered, (but am having a hard time deciphering) it is my understanding that this is illegal for a potential employer to revoke the offer of employment based on a charge that I was not convicted of and for a summary charge which I plead guilty to. If this is the case, which I am not certain it is, what recourse do I have?

Since I received the notice, I was told that this company has a pattern of doing this, and since they seem to feel it is their duty to hold others accountable for their past conduct, maybe it's time that this company is held accountable for their present consistent conduct, if they are breaking any laws.

Here are links to information that I have gathered. I just need someone to explain if I understand it correctly, and if so, who would I contact for help? Do I contact ECCO then hire a private attorney?

http://www.legis.state.pa.us/WU01/LI...1.024.000..HTM 18 Pa. Cons. Stat. § 9124 (b 1 & 3)

http://www.law.com/jsp/cc/PubArticle...6631&thepage=1

http://www.nolo.com/legal-encycloped...mployment.html

http://corporate.findlaw.com/human-r...decisions.html

[cbg]

Let me ask you a question first, and the answer has a direct impact on the legality of the employer's action.

Did they at any time, either in the interview or on the application, ask you any questions to which a literal and truthful answer would have revealed these charges?

If so, how did you answer?

[gurning]

On the application they did ask if I had been convicted, plead guilty, no contest, or nolo contendre to a felony or a misdemeanor, to which I truthfully replied no.

During the interview I was asked again about a felony, a misdemeanor, and I again said no, because I haven't, but that I had pleaded guilty to the other (summary) charge. However, during the interview, I didn't even realize it was *called* a *summary* charge. (I was just told by the DA and my attorney that the charge would not "leave the office", meaning it would not affect a job in the future. Obviously, they were wrong.)

After I received the Pre-Adverse Action Notice, I was told that it didn't matter that it was a summary charge, what mattered was that I pleaded guilty to the charge.

[Mr. Knowitall]

The EEOC's change of policies is duly noted, but that change has not yet been litigated (and it will be litigated), and only comes up in the context of unlawful discrimination. The concern being addressed is that criminal histories are being used as a pretext to avoid hiring candidates in protected categories (e.g., race). Federal civil rights law does not treat people with criminal histories as being a protected class. If you are a member of a protected class, you can make a federal civil rights complaint alleging that your record may have been used as a pretext for unlawful discrimination. States can offer additional protections.

How is 18 Pa. Cons. Stat. § 9124 (Use of records by licensing agencies) relevant? I suspect you intended to look at 18 Pa. Cons. Stat. § 9125.

(a) General rule. -- Whenever an employer is in receipt of information which is part of an employment applicant's criminal history record information file, it may use that information for the purpose of deciding whether or not to hire the applicant, only in accordance with this section.

(b) Use of information. -- 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.

(c) Notice. -- The employer shall notify in writing the applicant if the decision not to hire the applicant is based in whole or in part on criminal history record information.

A summary offense is not a felony or a misdemeanor, thus (based on what you've told us so far) I agree with you that under your state's law the summary offense should not have been a factor in its hiring decision. You can request investigation by the PHRC.

[gurning]

18 Pa. Cons. Stat. § 9124 is only relevant because of all the googling I did looking for answers and that kept popping up. It didn't make any sense to me either, which is one of the reasons I finally asked here.


I am in a "protected class", but they hire others in my "protected class" so I don't see how that is an issue here. The issue to me is that I wasted time and lost even more wages because of the offer, and because I didn't get the call until yesterday that they were withdrawing the offer, I have to wait until Monday to see if I can get my old job back or to try to find a new job if that is not possible.


The bigger issue is that it unintentionally came to my attention that many people such as myself, are scrambling to have their records expunged, (which is a good idea anyway), after their background checks have come back from this particular company. From the information I gathered, (and again I could be wrong), in Pennsylvania, even a misdemeanor or felony which did not result in a conviction should not be used in the hiring process. But there is some reason that many people are scrambling to our county courthouse to have their records expunged, (which is a good idea anyway), after their background checks have come back from this particular company.


Because only people who have had misdemeanor arrests or felony arrests that did not result in a conviction, or summary offenses would be qualified to have their records expunged, that says to me, that this company has history of revoking offers of unemployment based on such as summary offenses, as in my case, or misdemeanor arrests or felony arrests that did not result in a conviction, which as I understand it, should not be a factor in its hiring decision either.


If people such as myself that have made mistakes in the past have to face the consequences of their actions, then why should an employer be permitted to constantly make the same mistake over and over and not face the consequences? Particularly when they are in the business of enforcing the law on others? I guess it's not just that I am behind in my bills, it's the hypocrisy of it all.

Okay then, CBG, and mr. knowitall. I really appreciate your help!

[cbg]

No one is saying they don't have to face any consequences. That's why you make the report to the PHRC.