Pennsylvania has been active in recent years in expanding its judicial relief mechanisms, though it still has a long way to go to catch up to states like Kentucky, Missouri, and New Jersey, which have in the past 12 months extended their expungement laws to some felonies and/or reduced waiting periods. No one has been more active and effective in the effort to increase the availability of “clean slate” judicial remedies than Sharon Dietrich, Litigation Director for Community Legal Services of Philadelphia. Sharon has written a comprehensive guide to existing authorities on expungement and sealing in her state, which also discusses pending bills that would extend these laws. The abstract follows:
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.
In an article published this week by the Shriver Center, Preventing Background Screeners from Reporting Expunged Criminal Cases, Sharon Dietrich offers helpful advice for advocates on to how to combat the problem posed by the reporting of expunged and sealed criminal records by private commercial background screening services. Her advice is based partly on her own organization’s participation in litigation under the federal Fair Credit Reporting Act (“FCRA”) against one of the country’s larger background screeners — an experience that she recounts in detail.
Dietrich identifies the problem of improper private reporting of expunged records as one that “threatens to undermine the whole strategy of broadening expungement as a remedy for the harm of collateral consequences.” She describes the underlying issue as follows:
[T]he commercial background-screening industry, which runs the lion’s share of the background checks obtained by employers and landlords, sometimes reports those expunged cases long after they have been removed from the public record. Companies in the background-screening industry typically maintain their own privately held databases of criminal cases from which they generate background checks. When updating their data from public sources (often state courts), these screeners often do not use methods to determine whether cases that were reported by their sources have been removed (i.e., expunged or sealed), and they continue to report them.
In a recent series of posts on The Volokh Conspiracy blog promoting his book The Eternal Criminal Record, Professor James Jacobs “[speaks] strongly against a public policy that coerces private employers to ignore job applicants’ criminal records while leaving them to cover the costs imposed by ex-offender employees.” His arguments suggest that employers are being saddled with such costs (for which no proof whatsoever is presented) because of social activism on behalf of people with criminal records. In fact, modest legal protections for people with criminal records derive from longstanding employment discrimination law principles.