Pa.: Applicant’s Withholding of Criminal History Grounds to Revoke Offer

By Rosemarie Lally Nov 21, 2014

State law does not prevent an employer from revoking a conditional offer of employment based on the applicant’s intentional failure to disclose various misdemeanor convictions on his employment application in violation of the employer’s policies, a Pennsylvania federal court held.

Dustin McCorkle applied for a position as a repair technician at Schenker Logistics, Inc. In the employment application, job applicants are asked to disclose all crimes of which they have been convicted or to which they have pled guilty in the past 10 years and to provide a brief description of any convictions or guilty pleas. The application also includes a certification stating that any false, misleading or incomplete answers are grounds for disqualification for employment. Although McCorkle disclosed on his application that he had been convicted of stalking and harassment while trying to gain custody of his daughter, he failed to disclose that he had been convicted of or pled guilty to several other misdemeanors, including public drunkenness, possession of controlled substances, and driving under the influence of marijuana.

When the company conducted a criminal background check and discovered these omissions, it forwarded the criminal history report to McCorkle and allowed him the opportunity to explain the inconsistencies or correct any errors in the report. The company then revoked McCorkle’s offer of employment one week later after receiving no response from him, stating that it was revoking the offer based in whole or in part on the criminal history information.

McCorkle sued, alleging that the company violated Pennsylvania’s Criminal History Record Information Act (CHRIA) by revoking his contingent offer based on convictions that he contends were unrelated to his suitability for employment, and by failing to notify him in writing that he was disqualified in whole or in part based on his criminal history. CHRIA states that if an employer has information that is part of an employment applicant’s criminal history record information file, “it may use that information for the purposes of deciding whether or not to hire the applicant, only in accordance with this section.” It continues that “[f]elony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”

In response, the company moved for summary judgment, contending that McCorkle intentionally withheld information about his criminal history during the hiring process in violation of Schenker’s employment policies and the terms of the offer, thereby disqualifying him from hire.

The company argued that its use of the criminal history information was outside the purview of CHRIA because the criminal history was used to verify the accuracy of McCorkle’s representations on his application, not as a basis to deny him employment. Specifically, the company claimed it revoked the applicant’s offer because he intentionally withheld information about his criminal convictions during the application process, not because of the underlying criminal history itself. The company asserted that it did not even evaluate the criminal history after using it to confirm McCorkle’s incomplete disclosure on his application.

The court distinguished between revoking an offer of employment because of an applicant’s criminal convictions and revoking an offer based on his failure to fully disclose convictions as required by the application. The court, examining the state statute, found that the CHRIA does not preclude an employer from revoking a conditional offer of employment based on a good faith belief than an applicant intentionally withheld material information on his employment application in violation of the employer’s policies.

The determination of whether a prior conviction is unrelated to the position applied for is to be made by the employer, not the applicant, the court said.Oncethe company becameawareofthenumerousomissionson[McCorkle’s] applicationdespiteitsexplicitinstructionstoprovidecompleteinformationithadareasonablebasistorevokehisofferofemploymentpursuanttothetermsoftheconditionalofferanditshiringpolicies,andwasundernoobligationtoconsiderwhetherplaintiff’sconvictionswererelatedtohissuitabilityfortheposition.” Based on this finding, the court granted the company’s motion for summary judgment. McCorkle v. Schenker Logistics Inc., M.D. Pa., No. 1:13-CV-3077, M.D. Pa. (Oct. 8, 2014).

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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