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Revocation of Ex-Convict’s Job Offer Did Not Violate State Law, Says PA Court

Pennsylvania, like many states, has restricted employer use of criminal history in hiring and other employment decisions. Under the Criminal History Record Information Act (CHRIA), Pennsylvania employers may “consider” convictions only if they directly relate to the position for which the applicant seeks employment. In a recent case—McCorkle v. Schenker Logistics, Inc., No. 1:13–CV–3077, 2014 WL 5020598 (M.D. Pa. Oct. 8, 2014)—the plaintiff, Dustin McCorkle, filed suit under the CHRIA, claiming that the defendant, Schenker Logistics Inc., arbitrarily relied on his criminal history in violation of the law.  The Middle District of Pennsylvania did not agree, dismissing the plaintiff’s claim.

By way of background, on its job applications, the defendant asked candidates to provide their conviction histories for the last ten years. The plaintiff answered this question in the affirmative, revealing past convictions for stalking and harassment. Upon completing his application, the plaintiff certified to understanding the consequences of furnishing “any false, misleading, or incomplete information.” After receiving the plaintiff’s criminal records through a third-party vendor, the defendant learned the plaintiff did not disclose all of his convictions (including several convictions for drug offenses) on his job application and, as a consequence of these misrepresentations, his conditional offer of employment was revoked. The plaintiff claimed that the defendant’s actions violated the CHRIA.

The Court held that the CHRIA “does not preclude an employer from revoking a conditional offer . . . based on a good faith belief than an applicant intentionally withheld material information on his employment application in violation of the employer’s policies.” Stressing that the company did not revoke the plaintiff’s offer “because of his misdemeanor convictions,” but instead for “intentionally misrepresent[ing] his criminal history on his employment application,” the Court determined the defendant “was under no obligation [under the CHRIA] to consider whether [his] convictions were related to his suitability for the position.”

In reaching this decision, the Court also rejected the notion that the plaintiff did not have to reveal the convictions in question because they were, in his opinion, unrelated to the position.  “Such a determination is to be made by the employer, not the applicant,” the Court opined.

The plaintiff also claimed that the defendant violated the CHRIA by failing to notify him in writing, as the statute requires, “if the decision not to hire [him] [is] based in whole or in part on criminal history record information.” The Court held that the defendant was under no such obligation given that it had rescinded the plaintiff’s offer based on themisrepresentations of his criminal history, not the criminal history itself. That being said, the Court footnoted that the defendant had satisfied the CHRIA’s notice requirement when it sent the plaintiff a letter advising him that his offer had been rescinded based on the results of the “consumer report” it received from the third-party vendor.

The Court’s decision is a positive development for employers in Pennsylvania who decide to take adverse action based upon misrepresentations of criminal history in job applications and related documents. Stay tuned to see if the plaintiff appeals to the Third Circuit.

© 2020 Proskauer Rose LLP. National Law Review, Volume IV, Number 289


About this Author

Joseph C O'Keefe Labor Employment Attorney Proskauer Rose Law Firm

Joseph C. O'Keefe is a partner in the Labor & Employment Law Department.

For more than 25 years, Joe has litigated employment disputes of all types, on behalf of employers, before federal and state courts, arbitral tribunals (e.g. FINRA and AAA), and state and federal administrative agencies. Joe has litigated employment-related lawsuits alleging discrimination and sexual harassment, whistleblowing, non-competition/trade secret matters, compensation disputes, breach of contract, defamation, fraud and other business related torts. Joe’s practice includes representing clients...

Daniel L Saperstein, Proskauer Law Firm, Labor Employment Attorney

Daniel L. Saperstein is an Associate in the Labor & Employment Law Department, resident in the Newark office. He is a member of the Employment Litigation & Arbitration, Labor-Management Relations, Employment Law Counseling & Training, International Labor & Employment, and Whistleblower & Retaliation Groups, as well as the Dodd-Frank Task Force.