In many states across the country, including Pennsylvania and West Virginia, individuals convicted of certain crimes, such as drug convictions or convictions of theft and fraud, are prohibited from seeking employment at facilities such as nursing homes, hospitals, or child care facilities. Regardless of the nature of their sentence, or how much time has passed since a conviction, these individuals can find themselves permanently banned from these types of employment opportunities. However, a decision released just before the New Year by the Pennsylvania Commonwealth Court calls into question the constitutionality of these employment bans.
In West Virginia, employers at long-term care facilities such as nursing facilities or hospices may conduct extensive criminal background checks on job applicants through West Virginia’s WV CARES program. If a job applicant is found to have certain criminal convictions on his or her record, they may be disqualified from employment eligibility. Although WV CARES technically allows an applicant to seek a variance, or exception, from disqualification, most job seekers with a criminal history will find themselves precluded from employment at long-term care facilities.
In Tyrone Peake, et al. v. The Commonwealth of Pennsylvania, the Pennsylvania courts took a closer look at a similar ban on employment for applicants with a criminal history under their state law. Under the Older Adults Protective Services Act, individuals with a criminal conviction for one of the act’s listed crimes (such as theft) are prohibited from any type of employment that involves the care of older individuals. In particular, the Act provides that for certain types of convictions, an individual may never qualify for employment, no matter how long ago the conviction occurred or what type of rehabilitative efforts the applicant may have previously undertaken.
In April 2015, Tyron Peake and five other individual petitioners filed this lawsuit, seeking review of the Act’s lifetime ban on employment for certain individuals. Each of the petitioners was an individual with a prior conviction that would disqualify them from employment, but who otherwise would be fully qualified to care for older adults in a care facility. Each of their convictions occurred many years prior for a range of offenses from stealing a car to writing bad checks. The petitioners claimed that the Act violated their constitutional due process rights by depriving them of lawful employment opportunities.
In a 7-0 decision, the Pennsylvania Commonwealth Court agreed, finding that the lifetime employment ban for individuals with certain criminal histories was unduly oppressive and not the least burdensome or most appropriate means for protecting older individuals while also allowing those with a criminal history to seek employment they would otherwise be entitled to. For instance, the Court noted that the petitioners would still be subject to a criminal history check, which would allow employers to evaluate their fitness for employment and take discretionary, as opposed to mandatory, action. Under such an approach, an employer would not be required to hire an applicant with a criminal conviction for a position, but the employee also would not be presumptively prohibited from even applying for such a job. Accordingly, the Court determined that in the face of these less restrictive alternatives, the due process rights of the petitioners, and others similarly situated, were violated by the lifetime employment ban.
While this ruling applies solely to Pennsylvania’s Older Adults Protective Services Act, it raises important questions for West Virginia’s ban on employment for those with a criminal history as well. Should a challenge be raised, many of the due process concerns raised by petitioners in Tyrone Peake may be equally applicable to West Virginia residents and may, accordingly, require that the state give greater freedom to West Virginians to apply for any job that they believe they may be qualified to undertake.
As any former defendant knows, a criminal history can significantly limit one’s opportunities even years or decades down the road. While the constitutionality of these limitations is increasingly questioned, the first step toward avoiding years of difficulty and discrimination is to fight back against a criminal conviction in court. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.
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