On December 30, 2015, the unanimous Commonwealth Court of Pennsylvania, sitting en banc, declared the lifetime employment ban contained in The Older Adults Protective Services Act (OAPSA) to be facially unconstitutional and enjoined Pennsylvania from further enforcement of the law (See Peake v. Commonwealth). OAPSA is a Pennsylvania law that, among other things, prohibits anyone who has ever been convicted of any disqualifying crime at any time in his or her life from ever holding any job at any covered residential health care facility. In essence, the Act imposes a lifetime employment ban, forever disqualifying individuals from work due to often long-past actions for which the offender’s debt to society has since been repaid. Even if the owner or operator of a covered facility, based upon his or her years of experience in the industry, believes that an applicant or employee with a prior conviction is the best qualified for the job, the criminal history of the applicant or employee is the only factor the employer may consider and employment is barred. Employers have no discretion to make individualized hiring decisions.
Writing for the 7-0 Commonwealth Court, Judge Leavitt ruled that the ban “is unconstitutional on its face” because “it goes beyond the necessities of the case and is not substantially related to the Act’s stated objective of protecting older adults.” The Court also found that OAPSA’s employment ban unconstitutionally imposes an irrebuttable presumption of unfitness for employment that is not universally true and that reasonable alternative means exist for ascertaining an individual’s fitness. The Court therefore granted the Petition for Summary Relief, declared OAPSA’s employment ban unconstitutional on its face, and enjoined the Commonwealth of Pennsylvania from future enforcement of the law.
Barring all individuals with prior criminal convictions from employment is antithetical to any concerns for rehabilitation and reintegration with society. An individual who has successfully completed his or her punishment after a criminal act should not be further stigmatized by being unable to get a job. Not surprisingly, recidivism rates are substantially lower for individuals with steady employment opportunities; thus, public safety is actually harmed by statutory employment bars like OAPSA or hiring practices that automatically exclude individuals with criminal records. Allowing those with prior criminal convictions to reenter the work force also saves public tax dollars by avoiding the high costs of corrections and other social service benefits to which an unemployed individual may be entitled. To successfully reintegrate an individual with a record back into society is the very epitome of a win-win situation.
In addition to making for bad public policy, lifetime employment bans such as that in OAPSA are based on a faulty premise: namely, that a past criminal act is indicative of an increased risk of future criminal behavior. Rigorous social science studies have now confirmed that after a limited number of years – four to seven years for a single conviction and no more than ten years for multiple convictions – an individual with a prior criminal conviction is no more likely to commit a criminal offense than any member of the general public. Lifetime employment bans like OAPSA, which are based on an irrebuttable presumption of “once a criminal, always a criminal,” simply are not supported by social science results.
A more thoughtful and balanced approach is required: Yes, under certain circumstances, a prior conviction may be relevant to the fitness of a specific candidate or employee for the requirements of a specific job; but those determinations must be made on a individualized basis with due consideration of all relevant factors, including the nature and severity of the prior criminal conduct, the time elapsed since the conviction, the efforts at rehabilitation and reintegration the individual has made in the interim, and the specific job requirements of the position for which he or she would be hired. The decision whether to hire an individual with a past criminal conviction is not amenable to a one-size-fits-all solution. And a lifetime ban, which completely precludes an employer from hiring an individual with a record (often from decades past), even if the employer thinks that he or she is well-qualified for the position, is irrational and counterproductive.
It’s time to bring some common sense back to this issue: Individuals with a prior criminal conviction already have plenty of barriers to overcome in becoming reemployed. Their reintegration into society should not be made impossible through misguided efforts that are premised upon faulty assumptions and actually result in increased safety risks.
A version of this article was originally published on the LeVan Law Group website. Printed with Permission.
Peter H. (“Tad”) LeVan, the lead attorney working pro bono on Peake and it predecessor case, Nixon v. Commonwealth of Pennsylvania, is a seasoned trial and appellate attorney who has tried a number of high-stakes cases against national banks, Wall Street financial institutions and a Madoff investment firm, securing settlements on behalf of injured plan participants that have exceeded $700 million