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PRINTER'S NO. 2873
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2452
Session of
2022
INTRODUCED BY PARKER, GALLOWAY, HILL-EVANS, McCLINTON,
KRAJEWSKI, INNAMORATO AND SANCHEZ, MARCH 24, 2022
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 24, 2022
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, in dissemination of criminal history
record information, further providing for use of records for
employment.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9125 of Title 18 of the Pennsylvania
Consolidated Statutes is amended to read:
ยง 9125. Use of records for employment.
(a) General rule.--Whenever an employer is in receipt of
information which is part of [an employment applicant's] an
individual's criminal history record information file, it may
use that information for the purpose of [deciding whether or not
to hire the applicant] taking an adverse employment action, only
in accordance with this section.
(b) Use of information.--Felony and misdemeanor convictions
may be considered by the employer only to the extent to which
they relate to the [applicant's] individual's suitability for
employment in the position [for which he has applied.
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(c) Notice.--The employer shall notify in writing the
applicant if the decision not to hire the applicant is based in
whole or in part on criminal history record information.]:
(1) for which the individual has applied; or
(2) in which the individual is currently employed.
(d) Exceptions.--Notwithstanding subsection (b), an employer
may not inquire about or consider the following when determining
an individual's suitability for employment:
(1) A case with a final disposition that is not a
conviction.
(2) A juvenile case resulting in an adjudication of
delinquency.
(3) A conviction of a summary offense.
(4) A case that was expunged or pardoned.
(e) Initial considerations.--When determining an
individual's suitability for employment, if the individual has
been convicted of a felony or misdemeanor, the employer must
consider the following information:
(1) The nature of the crime.
(2) The time that has passed since the offense or
completion of the sentence. An offense may only be considered
within seven years of the date of arrest or date of release
from incarceration, whichever is later.
(3) The type of employment sought or currently held.
(f) Notice.--If the employer initially determines that an
individual is not suitable for employment after evaluating the
considerations under subsection (e), the employer must provide
the individual with a copy of the criminal history record
information on which it is relying at least seven days prior to
making a final decision.
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(g) Final considerations.--Prior to making a final decision
on the individual's suitability for employment, the employer
must consider any information provided by the individual related
to the following:
(1) The accuracy of the criminal history record
information.
(2) The individual's employment history before or after
the offense.
(3) The individual's performance in the position or a
similar position.
(4) Employment or character references.
(5) Evidence of rehabilitation.
(6) Other information that may demonstrate the
individual is suitable for employment in the position.
(h) Powers and duties of department.--The department shall:
(1) Enforce and administer the provisions of this
section. The department may promulgate regulations necessary
to implement this section.
(2) Investigate credible complaints made to the
department alleging a violation of this section. The
following shall apply:
(i) The department shall have subpoena power.
Application may be made to Commonwealth Court to enforce
a subpoena. Nothing in this subparagraph shall be
construed to excuse an individual from producing
documents and records as requested by the department
under another provision of law.
(ii) The department shall provide a written
determination at the conclusion of the investigation
explaining the department's conclusion as to whether a
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violation of this section has occurred.
(i) Retaliation prohibited.--
(1) An employer may not:
(i) interfere with, restrain or deny the exercise of
rights provided under this section; or
(ii) discharge, discriminate or take adverse action
in retaliation for exercising rights protected under this
section. Rights protected under this section include:
(A) making a complaint to or informing the
department of an employer's noncompliance with this
section;
(B) participating in investigations or
proceedings; and
(C) informing an individual of the individual's
potential rights and assisting the individual in
asserting the rights.
(2) If an employer takes adverse action against an
individual within 90 days of the individual's exercise of
rights protected under this section, the act shall raise a
rebuttable presumption of the employer's having done so in
retaliation for the individual exercising rights protected
under this section.
(j) Administrative penalties.--The following shall apply:
(1) The department shall assess the following penalties
on an employer that violates this section or a regulation
promulgated under this section:
(i) For a first offense, a fine of not less than
$1,000 nor more than $2,500 for each violation of this
section.
(ii) For a second or subsequent offense, a fine of
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not less than $2,500 nor more than $5,000 for each
violation of this section.
(2) The department may order an employer to take any
action which the department deems necessary to correct a
violation of this section.
(3) An action by the department under this subsection
shall be subject to review under 2 Pa.C.S. Chs. 5 Subch. A
(relating to practice and procedure of Commonwealth agencies)
and 7 Subch. A (relating to judicial review of Commonwealth
agency action).
(k) Civil penalties.--The department or an individual who in
good faith alleges a violation of this section may institute an
action in a court of competent jurisdiction against an employer.
An action alleging retaliation must be instituted within two
years from the date the alleged retaliation occurred. All other
actions alleging a violation of this section must be instituted
within one year of the alleged violation. An action under this
subsection may request any of the following:
(1) Back pay.
(2) Compensatory damages.
(3) Punitive damages.
(4) Reasonable attorney fees and costs of litigation.
(5) Any other relief that the court deems appropriate,
including instatement or reinstatement to an employment
position.
(l) Applicability.--
(1) This section shall apply if a Federal law or other
State law does not preclude, based on criminal history record
information, an individual from an employment position.
(2) This section shall not apply if a Federal law or
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other State law precludes, based on criminal history record
information, an individual from an employment position.
(m) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Department." The Department of Labor and Industry of the
Commonwealth.
"Individual." A job applicant, employee or contractor.
Section 2. This act shall take effect in 90 days.
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