Employment bars in long-term health care facilities declared unconstitutional

A few days ago we received the following communique from Sharon Dietrich of Community Legal Services of Philadelphia, announcing a major litigation victory that will be welcome news across the country.  On December 30 a unanimous 7-judge appeals court struck down the provisions of the Pennsylvania Older Americans Protective Services Act barring employment of people with criminal records in long-term health care facilities such as nursing homes and home health care agencies.  The provisions declared unconstitutional on due process grounds law include lifetime employment bans for offenses as minor as misdemeanor theft, which Sharon notes “prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.”  The decision in Peake v. Commonwealth is here, and NPR’s report on the decision is here.

I am thrilled to tell you of a powerful litigation victory in Pennsylvania today. It concerns the PA Older Adults Protective Services Act (OAPSA), which governs employment of people with criminal records in long-term health care jobs in facilities such as nursing homes and home health care agencies. The law contains lifetime employment bans on offenses ranging from murder to theft misdemeanors that prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.

Today, a seven judge court found the lifetime bans to be unconstitutional under our state constitution and enjoined the law’s continued enforcement. Yep, all seven judges ruled in our favor.

If you have been around for a while, you may be thinking, didn’t Community Legal Services win that case a long time ago? We thought so, in 2003 in a case called Nixon. That was a ruling that applied to five individuals and a big non-profit. The state legislature never took the steps that were anticipated to make the law constitutional, and we felt compelled to seek an injunction so that it would be struck down in its entirety, which is what the decision does.

For the lawyers getting this communique, the state constitutional grounds were due process and irrebuttable presumption. There is also an useful discussion about the standards for facial constitutional challenges. We anticipate that this decision may be helpful on state-created employment barriers beyond criminal records (such as child abuse and neglect records and overbroad licensing requirements).

This litigation was spearheaded for CLS by my colleague Janet Ginzberg. Jamie Gullen and I were other CLS staff on the case. Our pro bono team was also key, doing much of the heavy lifting. Tad LeVan, a sole practitioner (take that, you lawyers too busy for pro bono work!), did much of the briefing and argued the case. Robert LaRocca of Kohn, Swift & Graf and Seth Kreimer of the University of Pennsylvania Law School also did essential work. We are also grateful to Kiminori Nakamura and Julien Savoye as serving for experts for us, pro bono, on redemption research.

We now wait to see if there is an appeal, but the 7-0 lineup encourages me to think that the State might not continue.

It is a great way for CLS’s clients to begin a new year.

Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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