A team of private and public interest lawyers filed a lawsuit in Harrisburg challenging a state statute that unfairly shuts out scores of people from employment in the long-term health care field and deprives elderly, sick and disabled people of caregivers.  The lawsuit alleges that these lifetime bans are unconstitutional and irrational, given the evidence that many of these workers present a very low level of risk.

The lawsuit, Peake v. Commonwealth of Pennsylvania, alleges that the lifetime employment ban contained in the Older Adults Protective Services Act (OAPSA) should be invalidated so that qualified candidates have a fair chance at gaining employment.  OAPSA prohibits certain health care facilities — including nursing homes, other residential facilities, and home health care agencies — from hiring individuals who have criminal histories containing specified violations.  The lifetime ban applies regardless of the age of the conviction andprecludes any consideration of the rehabilitative efforts in which the ex-offender engaged in the often-lengthy intervening time period.

Plaintiffs’ expert, a criminologist who studies recidivism, concludes that although past criminal conduct may correlate with a future risk of illegal behavior in the years immediately following the conviction, there is no such correlation for older or more minor convictions.  Specifically, based upon rigorous social science studies, he reports that after a certain amount of time from the conviction – four to seven years for a single conviction and no more than ten years, and often less, for multiple convictions – an individual’s risk of offending again is no greater than that of any other member of the general population.  As Tad LeVan of LeVan Law Group noted, “The expert report of Dr. Kiminori Nakamura provides strong social science support for the position that OAPSA’s lifetime employment banis entirelyirrational, overbroad and unconstitutional.”

The plaintiffs in this lawsuit include five individuals who have old disqualifying convictions – some from as long as three decades ago – that prevent them from working in nursing homes or as home health aides due to OAPSA.  Several plaintiffs have previous successful experience working with the elderly and all of them possess the personal and professional qualifications that would enable them to be dedicated and competent caregivers and excellent employees.

One plaintiff, Tyrone Peake, was found guilty of an attempted theft charge in 1982 at the age of 18 years old, after riding as a passenger in a car that friends had stolen.  After successfully completing probation and working several low-paying jobs, he decided to go back to school.Overcoming a previously undiagnosed learning disability, Mr. Peake eventually succeeded in earning an Associate’s Degree in Behavioral Health and Human Services, as well as certificates in Addiction Studies and Recovery.  He has been accepted to a Bachelor of Arts program in Behavioral Sciences.  Because he knows what it is like to struggle with a learning disability, he relishes working in therapeutic care and seeks to help people with mental or behavioral disabilities.  However, because of his one-time non-violent mistake from 32 years ago, OAPSA precludes him from being able to advance in his profession and to provide much-need care.

The sixth plaintiff, Resources for Human Development (RHD), is a non-profit social service organization that provides residential programming and services for individuals with mental illness, mental retardation and chemical dependency issues.  RHD, which was a plaintiff in a previous lawsuit of this nature almost fourteen years ago, believes that many people with criminal records can become valuable employees, particularly for serving vulnerable populations who have faced some of the same challenges.  RHD alleges that OAPSA’s overbroad lifetime bans hampers its ability to hire otherwise highly qualified individuals.

Community Legal Services Employment Attorney Janet Ginzberg said, “Not only are these hiring bans unconstitutional, they harm Pennsylvania’s economy by limiting employment opportunities and they prevent people who are elderly or disabled from getting the best care available.”

Fourteen years ago, CLS and private co-counsel challenged the constitutionality of these provisions.  In Nixon v. Commonwealth, first the Commonwealth Court and then the Supreme Court of Pennsylvania found the criminal records provisions of OAPSA unconstitutional.  789 A.2d 376 (Pa. Commw. 2001), affirmed 839 A.2d 277 (Pa. 2003).

Since that time, the Pennsylvania courts have repeatedly reinforced the notion that lifetime employment bans of people with criminal records not only violates public policy, but also the Pennsylvania Constitution. Despite these rulings, the General Assembly has not amended OAPSA to conform to the governing rules laid out by the courts.  OAPSA continues to be applied in its original overbroad form to people with criminal convictions who are trying to work in the field, despite its unconstitutionality.

The litigation team consists of Community Legal Services (CLS), Tad LeVan of the LeVan Law Group, Professor Seth Kreimer of the University of Pennsylvania Law School, and Robert LaRocca of Kohn, Swift & Graf, P.C.

Click here to read the complaint.