By David M. Reutter

The Commonwealth Court of Pennsylvania held the lifetime ban on employment for persons convicted of enumerated felonies and seeking employ in facilities that care for older adults violates the Pennsylvania constitution’s due process clause.

The ruling came in a petition for review by five persons with “criminal convictions between 15 and 34 years ago for infractions such as theft, drug possession, writing bad checks, assault, and disorderly conduct.” Under chapter 5 of the Older Adults Protective Services Act, persons convicted of 27 enumerated offenses have imposed upon them a lifetime ban on seeking employment in a facility covered by the act.

In 2001, the court in Nixon v. Commonwealth, 789 A.zd 376 (Pa. Commonwealth 2001) found the act violated the individual plaintiff’s due process rights by arbitrarily infringing on the right to pursue a lawful occupation. The Pennsylvania Supreme Court affirmed for a different reason.

That court found there was no legitimate interest in protecting elderly citizens because the immediate effect of the statute was to prohibit the employment of those employed less than a year before the effective date of chapter 5, while allowing those with the same criminal offenses to continue in employ if they had been on the job a year or more prior to the act taking effect. “[T]here is not rational basis for treating the latter group as capable of rehabilitating themselves and the former group as not capable of rehabilitation.”

The general assembly never repealed or significantly amended the act’s criminal history provisions. The five petitioners and a non-profit social service provider challenged the act’s lifetime employment ban, citing Nixon. They pursued a facial constitutional challenge to “avoid the need for continuous piecemeal litigation consisting of numerous as-applied challenges brought by similar groups of aggrieved individuals.”

The Commonwealth Court found the legislation can curtail the right to engage in a chosen occupation for an important reason, but it may not do so in a way that is overly broad, i.e., “patently beyond the necessities of the case.” They “must have a real and substantial relation to the objects sought to be attained.”

Chapter 5 of the act “encompasses convictions for crimes ranging from murder and rape to misdemeanor theft convictions, and treats all these enumerated crimes the same” with a lifetime employment ban. It makes no provision for consideration of any other factor, such as the nature of the crime, the facts surrounding the conviction, the time elapsed since the conviction, evidence of the individual’s rehabilitation, and the nature and requirements of the job.”

The court found the “lifetime employment ban at Act-covered facilities for anyone convicted of an enumerated offense at any time, with a grandfather clause for employees with identical convictions employed for one year at a facility as of July 1, 1998, does not bear a real and substantial relation to the stated goal of protecting older adults from “abuse, neglect, exploitation and abandonment.”

Moreover, the act’s presumption of unfitness for employment is impermissible under precedent. First, it infringes on Pennsylvania’s due process clause. Second, it is not universally true that all persons convicted of the enumerated offenses present a danger to those in an act-covered facility. Finally, a reasonable alternative means is to allow the employer to make a case by case risk assessment and evaluation.

As such, the Court held the lifetime employment ban in Section 503 (a) of The Act, 35 P.S. §10225.503 (a) violates the due process clause of the Pennsylvania constitution.

See: Peake v. The Commonwealth of Pennsylvania, Case No 216 M.D. 2015, (Pa. Commonwealth 2015).

Subscribe today

Already a subscriber? Login