CHRIA, a Pennsylvania law (18 Pa. C.S.A. §9125), provides that employers are only permitted to use a person's previous criminal history limitedly in making a hiring decision. As such, felony and misdemeanor convictions are only to be considered to the extent to which they relate to a position.

Most recently, a large, national company was accused of violating CHRIA by declining employment based on criminal histories that were unrelated to employment suitability. The plaintiffs in this case argued for a six-year discovery period, based on Pennsylvania's six-year catchall statute of limitations (42 Pa. C.S.A. § 5527(b)). The defendant countered, arguing that Pennsylvania's two-year statute of limitations for tortious conduct was more appropriate.

Ultimately, the U.S. District Court for the District of New Jersey sided with the plaintiffs, ruling that affected subjects have up to six years (not two) to file claims against employers for improper use of criminal histories as described under CHRIA. The court rejected the company's argument based on the concept that "plaintiffs may bring claims [under the CHRIA] analogous to various Pennsylvania common law causes of action, more than simply those sounding in tort."

While CHRIA specifies that employers must evaluate criminal history as it is directly related to the job posting, it does not specify how an employer should arrive at this decision. Similar to the federal Fair Credit Reporting Act (FCRA), CHRIA also requires employers to supply subjects with a procedural notification upon making an adverse employment decision based on the results of a criminal background check.

Plaintiffs who win CHRIA cases can recover actual damages. The statutory minimum is $100 per violation (plus attorneys' fees) and punitive damages range from $1,000-$10,000 for willful violations. Additionally, CHRIA plaintiffs and others alleging damages from employment denials due to criminal background checks can seek to represent other aggrieved individuals through class cases.

Employers are encouraged to revisit existing hiring policies to ensure those are in alignment with the terms of CHRIA.

Posted: February 3, 2023

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