The U.S. Court of Appeals for the Third Circuit reversed a district court’s dismissal of a job applicant’s claim under Pennsylvania’s Criminal History Record Information Act (“CHRIA”), holding that the statute applies even when an employer learns of an applicant’s conviction directly from the applicant rather than from a state repository.
Background
A commercial truck driver applicant disclosed during the hiring process that he had a fifteen-year-old armed robbery conviction for which he had served six years in prison. Upon hearing his disclosure, the prospective employer immediately refused to hire him based on that conviction.
The applicant sued under CHRIA, alleging that the employer:
- Used his prior conviction beyond the limits permitted by 18 Pa. Cons. Stat. § 9125(b), which allows use of convictions only to the extent they relate to job suitability; and
- Failed to provide written notice of its decision as required by § 9125(c) when rejecting an applicant based on criminal history record information.
The district court dismissed the complaint, concluding CHRIA did not apply because the employer learned of the conviction from the applicant himself rather than from a state criminal justice agency. The prospective employee appealed.
Statutory Framework
CHRIA regulates the disclosure and use of “criminal history record information.” Section 9125(a) provides that when “an employer is in receipt of information which is part of an employment applicant’s criminal history record information file, the employer may use the applicant’s prior convictions for the purpose of deciding whether or not to hire the applicant,” subject to:
- A suitability limitation: convictions may be used “only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” § 9125(b); and
- A notice requirement: if the employer bases a rejection on criminal history record information, it must notify the applicant in writing. § 9125(c).
The dispute on appeal centered on § 9125(a): whether the employer was “in receipt of information which is part of” the applicant’s criminal history record information file when the information was volunteered by the applicant rather than supplied by a state repository.
The Third Circuit’s Analysis
“In Receipt of Information” Focuses on the Nature of the Information, not its Source.
The Third Circuit held that § 9125 applies when an employer receives information of the kind that comprises an applicant’s “criminal history record information file,” regardless of how the employer obtained it.
Key Points:
- The phrase “in receipt of” is broad and does not restrict how or from whom the employer receives the information.
- Although the statute does not define “criminal history record information file,” the term appears elsewhere in CHRIA in connection with data repositories maintained by criminal justice agencies, which indicates that the “file” is the compilation of criminal history facts maintained by those agencies.
- Felony convictions such as the applicant’s armed robbery conviction are included within that “file” by statute, and are therefore “part of” it.
Thus, when the applicant disclosed that conviction, the employer was “in receipt of” information that is part of his criminal history record information file. The Court rejected the employer’s attempt to rewrite the statute as if it applied only when an employer received “information which is a part of” the file from the file itself or from a state agency. The text contains no such source-based limitation, and the Court refused to add it.
Ban-the-Box Implications
The employer argued that interpreting § 9125 to cover self-disclosures would undermine “ban-the-box” laws. The Third Circuit disagreed, explaining:
- CHRIA does not prohibit employers from asking applicants about prior convictions; it only limits how employers may use the information and requires written notice if it is the basis for rejection.
- Local “ban-the-box” ordinances may impose additional constraints, including barring questions about criminal history at certain stages, but those measures are distinct from CHRIA’s restrictions on use.
Disposition
The Third Circuit reversed the district court’s dismissal and remanded the case for further proceedings, leaving for later adjudication whether the employer’s use of the conviction complied with § 9125(b)’s suitability requirement and whether it met § 9125(c)’s written notice requirement.
Key Takeaways for Employers
- Self-disclosure is not an exemption: The fact that an applicant discloses his or her own criminal record does not relieve an employer of its duties under CHRIA. Source-based exemptions are narrowly defined in § 9104 and do not include applicant self-disclosure.
- Keep all requirements under the CHRIA in mind: Once CHRIA is triggered, employers may use prior convictions only to the extent they relate to the applicant’s suitability for the specific position, and must provide written notice if the decision not to hire is based, in whole or in part, on that criminal history information.
Don’t forget ban-the-box laws: CHRIA’s restrictions on use and notice apply in addition to, not in place of, any applicable local ban-the-box ordinances, like Philadelphia’s, that limit when and how employers may ask about criminal history in the first instance.
