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Pennsylvania employers can’t use criminal history information volunteered by job applicants in making hiring decisions according to recent Third Circuit decision

2/27/26

By: Cynthia O’Donnell

It is well known that employers frequently run criminal background checks on job applicants as part of the hiring process. Pennsylvania’s Criminal History Record Information Act (“CHRIA”), however, protects job applicants from being disqualified from employment by a prospective employer because of the applicant’s criminal background except in limited circumstances. CHRIA only allows an employer which is “in receipt of information which is part of an employment applicant’s criminal history record information file” to use this information in its hiring decision when: (1) the applicant has a felony and misdemeanor conviction on their record; and (2) the conviction relates to suitability for employment for the position.

An employer typically “receives” information which is part of an applicant’s “criminal history record information file” through a criminal background check. But what if a job applicant volunteers that they have a criminal background after the employer informs them that a background check is going to be done? Does CHRIA provide the job applicant with the same protection from an employer’s improper use of volunteered criminal history information as information received from a criminal background check? The Third Circuit Court of Appeals in Phath v. Central Transport LLC recently considered this issue and decided that employers must comply with the mandates of CHRIA where criminal history information is received directly from the job applicant.

In Phath, an applicant for a driver position directly divulged to Central Transport that he had a robbery conviction years ago, after he was told a pre-employment background check was going to be done. Central Transport declined to hire him on that basis. Phath sued Central Transport alleging that it violated CHRIA because his robbery conviction did not make him unsuitable for the driver job and because Central Transport failed to notify him in writing that the conviction was a factor in its refusal to hire him, as required by the Act.

Central Transport argued that CHRIA does not apply to criminal history information received directly from a job applicant. Instead, it asserted that the Act applies only where an employer receives criminal history information from a state agency which is part of the applicant’s criminal history record information file maintained by the agency.

The Third Circuit rejected Central Transport’s position, finding that criminal history information disclosed by a job applicant is part of the applicant’s “criminal history record information file.” The Court opined that the Act’s protections afforded to job applicants do not hinge on the source of the criminal history information. What matters is the type of criminal history information received.

How Pennsylvania employers can ensure compliance with CHRIA:

1. Determine if the job applicant’s criminal history is protected from being used in making a hiring decision:

• Has the applicant been convicted of a felony or misdemeanor?
  • If “NO” – The criminal history information cannot be used under any circumstances. It is a CHRIA violation to use it in a hiring decision.
  • If “YES”- The felony or misdemeanor conviction can be used in the hiring decision only if relates to the applicant’s suitability for the employment position.
    • Consider the nature of the crime and the job duties for the position in determining suitability for the job. (For example, a job applicant’s felony theft conviction may relate to their suitability to work as a bank teller.)
  • Remember, the source of the criminal history information should not be considered. The information does not have to be received through a criminal background check.

2. Notify the job applicant in writing if criminal history information is used in making the hiring decision.

3. Consult with experienced employment counsel for advice in navigating compliance with CHRIA.

Other relevant federal and local laws:

Pennsylvania employers should be aware of local laws that may impact use of criminal background information in the hiring process. For instance, the City of Philadelphia’s Fair Criminal Record Screening Standards Ordinance places limits on questions that City employers can ask job applicants about their criminal history.

The federal Fair Credit Reporting Act also imposes additional requirements on employers that use information provided by credit reporting agencies, which encompasses criminal history information, in making hiring decisions.

For more information, please contact Cynthia O’Donnell at cynthia.odonnell@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.