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Should you ask applicants about expunged criminal record?

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in Hiring,Human Resources

Pennsylvania employers can use information obtained as part of a criminal record check to deny a job if it shows that the applicant was convicted of a felony or a misdemeanor. You can’t use arrest records.

But what if the applicant reveals that he or she has an expunged criminal record? Can you use that information to deny a job?

A recent 3rd Circuit Court of Appeals case suggests you can, as long as you have a good business reason based on the underlying offense.

For that reason, it’s wise to ask applicants about expunged records if you’re hiring for sensitive positions, such as those involving access to financial records or money.

Recent case: Roderick Foxworth applied for a job as a state trooper at the Pennsylvania State Police, which conditionally offered him a spot.

The trouble began when he revealed on a pre-employment form that he had stolen $4,000 from a former employer. Because it was his first offense, he entered a diversionary program and his record was expunged.

The State Police then withdrew the job offer, and Foxworth sued. He claimed the Pennsylvania Criminal History Records Act makes it illegal for employers to consider expunged criminal records.

But the 3rd Circuit Court of Appeals disagreed. It reasoned that if an employer learns about prior criminal behavior from a job application and not through a criminal record check, it can use that information to deny a job provided it has a good business reason based on those facts. (Foxworth v. Pennsylvania State Police, No. 05-5571, 3rd Cir., 2007)  

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