There is a misconception that after seven years, certain minor crimes like shoplifting and underage drinking disappear from court records, and background searches will not find evidence of those prior crimes. Minor crimes will remain on a person’s record unless affirmative steps are taken to expunge criminal history information. Certain minor crimes, called summary offenses, can be expunged. A summary offense is not a misdemeanor or a felony. Examples of summary offenses include underage drinking, retail theft, or issuance of a bad check.
In order to expunge an adult’s criminal history record information, the offender must submit a petition to the court with jurisdiction over such records. The court then must send a certified order to the agency having control over the records. 18 Pa.C.S.A. § 9122. Expungement removes ONLY public records of the conviction contained within the courthouse. It is though the conviction never existed, and the public records of the conviction and sentencing disappeared from the courthouse.
In the case of first time offenders, certain minor crimes may be eligible for Accelerated Rehabilitative Disposition program (“ARD”). ARD is granted for such crimes like retail theft, minor drug possession cases, vandalism, and driving under the influence. If application for ARD is approved by the court, the charges are eventually dismissed after fines, community service, and completion of a probationary period. However, just because the charges are dismissed, certain criminal record information relating to the arrest will still exist. In order to remove records of the arrest, the offender must file a Motion for Expungement.
The incongruence between the status of an “expunged record” and private background searches that reveal evidence of a person’s summary offenses can result in disastrous consequences for a prospective employee. For instance, an employee who had a summary offense expunged may tell a prospective employer that he or she has never been arrested or convicted of a crime. The employer may then uncover summary offenses through a private unverified background search and conclude that the prospective employee lied on his or her application. Consequently, the employer may decline to hire the employee based on a failure to disclose convictions or application fraud.
If an employer decides to utilize a background search for employment reasons, it must comply with the Fair Credit Reporting Act (“FCRA”). The FCRA regulates consumer reporting agencies that employers utilize in performing background checks. Before an employer even obtains a consumer report, the FCRA requires that the employer provide written notice to an employee or applicant that they might use information in a consumer report for an employment decision. The employer must also obtain written permission from the applicant or employee to obtain the consumer report. Then, the employer must certify to the consumer reporting agency that it has complied with the procedures set forth above.
Before an employer can take any adverse employment action based upon information contained in a consumer report, the employer must provide to the applicant or employee notice that it will be obtaining a consumer report. The notice must also include a copy of the consumer report. Further, the employer must also provide the applicant or employee a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
If the employer does make an adverse employment action based upon information contained in a consumer report, the employer must give the applicant or employee notice-orally, in writing, or electronically. This notice must include the name and contact information of the consumer reporting company that produced the report, a statement that the consumer report company only produced the report and did not make the employment decision, and notice of the applicant or employee’s right to dispute the accuracy or completeness of any information on the report.
A prior conviction is not necessarily a complete barrier to employment. Pursuant to the Pennsylvania Criminal History Record Information Act (“PCHRIA”), criminal history information must be properly collected, disseminated, and utilized. Section 9125 of the PCHRIA mandates that an employer may not use criminal history record information in an overly broad way in making employment decisions. Under the PCHRIA, an employer may consider felony and misdemeanor convictions “only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” Since a summary offense is not a felony or misdemeanor, under the PCHRIA, the summary offense should not be utilized in employment decisions; and there is no authorization for employers to consider an applicant’s summary conviction. Secondly, under the PCHRIA, the employer must also notify the applicant if the decision not to hire is due in whole or in part to the criminal history record information. This allows the applicant to address evidence of a prior crime and explain or correct a troublesome conviction.
In conclusion, certain minor criminal offenses may be expunged. In order to expunge summary offenses, a person must petition the court. Nonetheless, certain information related to the crime may still exist within other records. Private background searches may also reveal evidence of minor criminal offenses even if they have been expunged in public records. Individuals should ensure the records are not only expunged in public records but that private databases do not contain expunged records. Due to the possibility that prospective employers may find evidence of expunged summary offenses of applicants, prospective employees should be aware of the risk that expunged convictions may still be uncovered. Although they should not be considered by employers in making employment decisions, prospective employees should make efforts to ensure that any expungeable offense is not readily available through a search of public or private data bases.
Contact McDonnell & Associates to schedule a consultation regarding any of these employment litigation, personal injury or civil litigation defense issues.
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