Paula Sanders and Andrea Kirshenbaum Present on Criminal Background Checks Post-Peake Decision on PHCA Webinar on April 26
April 26, 2016
Health Care Co-Chair Paula G. Sanders and Employment Principal Andrea M. Kirshenbaum presented, "Criminal Background Checks After the Peake Decision: What You Need to Know to Remain Compliant," on April 26. The webinar, sponsored by the Pennsylvania Health Care Association (PHCA), was designed to help long term care facilities, personal care homes, assisted living residences and other affected entities understand what they need to do to remain in compliance with OAPSA and other laws governing background checks.
On December 30, 2015, the Commonwealth Court held in Peake v. Commonwealth of Pennsylvania, (Peake) that the “lifetime employment ban” contained in the Older Adults Protective Services Act (“OAPSA”), violates due process guarantees under the Pennsylvania Constitution and is therefore not enforceable. The Court also held that the Department of Aging’s (DOA) previously posted “Interim Policy” (pertaining to the employment of individuals with certain criminal convictions caring for older adults) is invalid.
The Commonwealth has decided not to appeal the Court’s order, and therefore the DOA will no longer be providing covered facilities with direction regarding an applicant’s criminal background check. Criminal history background checks are still required for all job applicants, and the Departments of Health and Human Services (DOH and DHS respectively) will be looking for evidence that covered facilities are in compliance with the provisions of OAPSA that remain in effect.
- Analyzed the hiring implications of the Peake decision that found the lifetime employment ban for certain crimes to be unconstitutional.
- Interpreted the Commonwealth Court’s guidance regarding hiring discretion on a case-by-case basis.
- Discussed how to adapt hiring practices to ensure compliance with OAPSA and other state and federal laws including, but not limited to, the Fair Credit Reporting Act (FCRA), the EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, the Pennsylvania Criminal History Record Information Act, and Ban the Box ordinances.
The webinar can be viewed below: