Employers’ Guide to Criminal Background Checks in Pennsylvania

Margaret Grimm, Esq., mgrimm@tuckerlaw.com, (412) 594-5510 and Kaitlyn Smearcheck, Esq., ksmearcheck@tuckerlaw.com, (717) 221-7963

For employers and HR professionals, hiring the right talent involves balancing an employer’s need for workplace safety against Pennsylvania’s complex legal framework on fair hiring practices. Criminal background checks are an important part of that process, but Pennsylvania imposes specific rules governing how and when employers can request, obtain, and use criminal history information.

This article provides employers with an overview of Pennsylvania’s requirements and best practices for ensuring consistent, non-discriminatory hiring decisions.

The Legal Landscape: Key Pennsylvania Laws Employers Must Know

1. The Pennsylvania Criminal History Record Information Act (“CHRIA”)

The CHRIA provides that employers may consider a job applicant’s criminal convictions when deciding whether to hire said applicant. However, an applicant’s felony and misdemeanor convictions may only be considered to the extent that they relate to the applicant’s suitability for the job. Please note that the CHRIA only allows an employer to consider an applicant’s criminal convictions.

Private employers may not obtain information about arrests, indictments, or other criminal proceedings where:

The Clean Slate Law prevents potential employers and the public at large from seeing the record of certain felony and misdemeanor convictions, summary convictions, and any arrests that  did not result in a conviction.

• Three years have elapsed;
• No conviction occurred; and
• There are no pending proceedings seeking an eviction.

2. Pennsylvania Clean Slate Law

Most felony and misdemeanor offenses, such as drug crimes, theft crimes, including retail theft and receiving stolen property, trespass, forgery and fraud crimes, and criminal mischief, can be sealed under the Clean Slate Law. Additionally, most other misdemeanors, such as DUIs, simple assaults, harassment, disorderly conduct, summary convictions, and non-convictions can be sealed as well.

The Clean Slate Law can seal criminal records by: (1) automatic sealing or (2) petition. Some felony and misdemeanor convictions will be automatically sealed. Some felony and misdemeanor convictions require that a petition be filed with the court before it can be sealed. Summary convictions and non-convictions are automatically sealed.

Applicants must wait for the following amount of time before their records can be sealed:

• Eligible felony convictions can be sealed after 10 years without another misdemeanor or felony conviction.  
• Eligible misdemeanor convictions are sealed after 7 years without another misdemeanor or felony conviction.   
• Summary convictions can be sealed after 5 years.   
• Non-convictions (“Not Guilty” and dropped charges) are sealed after 30 days.

For most employers, this means that once a criminal record is sealed, the applicant’s criminal record will not appear on a criminal background check. Sealing a record does not mean the record is expunged, meaning the Department of Human Services, state licensing agencies, criminal justice agencies, including law enforcement and criminal courts, still have access to sealed records.

3. Local Ban-the-Box Laws

Ban-the-box laws have become increasingly common across states and cities and, essentially, require the removal of the “check box” on job applications inquiring about past criminal convictions. While there is no state-wide ban-the-box requirement for private employers in Pennsylvania, the cities of Pittsburgh and Philadelphia enacted their own local ban-the-box laws that employers must be cognizant of and adhere to, provided that those employers have offices and facilities located within the cities’ limits.

Pittsburgh

The Ensuring Equal Opportunity for Persons Previously Convicted ordinance, section 161.16A of the City of Pittsburgh Code, prevents Contractors (and Subcontractors) with City contracts from asking about or considering an applicant’s previous convictions during the initial application stages and until after the applicant has been determined to be otherwise qualified for a job. The ordinance excludes agreements/contracts for the public safety sensitive positions of police officer, firefighter, paramedic, and school crossing guard from these requirements.

After an applicant is found qualified and chosen for the job, the Contractor may give a conditional offer of employment that depends on the results of a criminal background check. The offer can state that hiring is contingent on completing the final steps of the process, pending a background check. Once the results are received, the Contractor may then evaluate whether the applicant’s past conviction is job-related, meaning it directly affects the person’s ability to perform the duties and responsibilities of the position.

Philadelphia

In 2011, Philadelphia enacted its ban-the-box law, entitled “Fair Criminal Record Screening Standards Ordinance” (“FCRSSO”), Chapter 9-3500 of Title 9 of The Philadelphia Code, making it the first major city to include private employers. Nearly all private employers with operations in Philadelphia, as well as city agencies, are subject to this law, albeit with certain exceptions.

Since its inception, it has undergone significant amendments, such as requiring employers to conduct an individualized assessment of criminal records before adverse actions, mandating notice requirements, and affording a private right of action for damages. Recently, on October 8, 2025, additional changes to the FCRSSO were enacted. These changes, effective January 6, 2026, significantly clarify and expand protections for job applicants and employees with criminal records and impose new compliance obligations on employers operating in Philadelphia.

Under the current law and its amendments, Philadelphia employers:

Inquiries:

• must make a conditional offer of employment, promotion, or re-employment before asking about criminal convictions.

Permitted lookback on certain convictions of applicants/employees:

• can consider felony convictions from within the past seven years.
• can consider misdemeanor convictions from within the past four years.
• will be statutorily barred from considering summary offenses.

Individualized assessment:

• Instead of having a blanket policy automatically excluding any applicant or employee with a criminal conviction from a job, employers need to conduct an individualized assessment including considerations like the nature of the offense, time passed and rehabilitation, employment history and references, and job duties.

Pending criminal charges:

• can ask applicants or employees about pending charges when an employer possesses reasonably reliable information to indicate that a pending charge has been lodged against said person that relates to the particular duties of the job. Employers may require employees to report a pending criminal charge, provided that said employer has a written policy detailing what offenses are reportable. No adverse action can be taken except when the law permits.

Expunged or sealed records:

• must refrain from considering conviction records that have been expunged or sealed, even if those records appear in a routine criminal background check or driving record. If such records do appear, employers must give applicants or employees the opportunity to present evidence of expungement or sealing before making any employment-related decision.

Notice of background check:

• If an employer notifies applicants of its intention to perform a background check during the hiring process, including in a job advertisement, it must also indicate that any evaluation of the background check will be subject to an individualized assessment.

Notice of employer’s intent to take adverse action and an applicant’s/employee’s opportunity to rebut background check results:

• Before an employer may take any adverse action based on the results of a background check, employers must:
  • (1) provide written notice of its decision;
  • (2) identify the specific convictions considered;
  • (3) provide the applicant or employee with a copy of the criminal record used;
  • (4) provide the applicant or employee with a summary of his or her rights under FCRSSO;
  • (5) provide a statement that the employer will consider evidence of any error in the criminal history records and evidence of rehabilitation and mitigation if provided by the applicant or employee;
  • (6) provide instructions on how the applicant or employee can exercise his or her rights to provide evidence or explanation directly to the employer; and
  • (7) must give the applicant or employee 10 business days to provide evidence of any inaccuracies or explanation of any record before it can make a final determination concerning employment.

Antiretaliation protections for applicants/employees:

• The amendments include an antiretaliation provision prohibiting employers from retaliating against any applicant or employee who exercises his or her FCRSSO rights.They also create a rebuttable presumption of unlawful retaliation where an employer takes any adverse action against an applicant or employee within 90 days after said person exercises his or her rights under the FCRSSO, subject to certain exceptions.

Miscellaneous:

• The amendments also raise penalties for violations of the law, allow the recovery of liquidated damages, and strengthen applicants’ and employees’ rights to sue employers.

4. Fair Credit Reporting Act (“FCRA”)

While the FCRA is a federal law, it is embedded into most background searches conducted in Pennsylvania. If employers use a third-party service to run background checks, including criminal, credit, or otherwise, then they are subject to the FCRA.

Under the FCRA, employers conducting background checks are required to: (1) obtain written consent from the applicant to conduct the background checks; (2) provide a pre-adverse action notice if something concerning comes up in the check; (3) provide the applicant with an opportunity to review and dispute the report; and (4) send a final adverse action notice to the applicant if the employer decides not to hire the applicant based on the results of the check.

5. Industry Specific Requirements

If you are an employer in the following industries, you must conduct criminal background checks on all current and prospective employees:

• School personnel, including bus drivers and independent contractors with direct contact with children;
• Childcare;
• Home Care Agencies;
• Elder Care Facilities;
• Private Detectives and Security Firms;
• Common Carrier Drivers;
• Human Society Police Officers; and
• Firefighters

Employer Requirements When Conducting Criminal Background Checks

1. Obtaining Consent

Before running a criminal background check, employers must obtain the applicant’s written permission in accordance with the applicable FCRA requirements. If an applicant elects not to have his or her background checked, then an employer is under no obligation to proceed further with hiring. 

2. When Employers May Conduct a Criminal Background Check

The timing for when an employer may run a criminal background check depends on the jurisdiction.

Outside of local ban-the-box areas, employers may run criminal background checks earlier in the hiring process. However, the best practice for employers is to perform checks as one of the last steps of the selection process, ideally, waiting to perform the check until a conditional offer of employment is made to the applicant. From a practical standpoint, there is little need to spend the time and money to run background checks on applicants who do not make it to the final round of hiring.

In local ban-the-box areas like Pittsburgh and Philadelphia, employers must wait to conduct a criminal background check until after they determine an applicant is qualified, selected for the job, and a conditional offer of employment is made to said applicant.

3. Considering an Applicant’s Criminal History

After the applicant is chosen for the job and a conditional offer of employment is made, employers can run a criminal background check. If the background check shows that the applicant has a criminal record, such as a history of felony and/or misdemeanor convictions, the employer may consider this information, but only to the extent that the history relates to the applicant’s suitability for the particular job in question.

The Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing Title VII’s application to the use of arrest or conviction records in employment decisions. Although this guidance does not have the force and effect of law, it provides employers with clarity, by way of examples, to demonstrate what is or is not permissible pursuant to the existing legal requirements on this topic.

The EEOC further provides employers with two options to act in accordance with this guidance. They can either validate their exclusion policies through empirical data (usually a more difficult and expensive approach to harness such data) or use a targeted screening approach with individualized assessment. This screening approach requires employers to develop a targeted screen when they initially analyze how specific criminal conduct may be linked to particular positions, considering the nature and gravity of the offense or conduct, the time that has passed since the offense, conduct, and/or completion of the sentence, and the nature of the job held or sought. For example, in evaluating the nature of the job sought and the criminal offense itself, if an employer is hiring a financial employee, it may be relevant for an employer to consider whether an applicant has any tax evasion or fraud convictions. On the other hand, if an employer is hiring a laborer or custodian, a conviction for fraud or tax evasion may not be relevant, although a recent conviction for a crime of violence might be, depending on the work environment.

Do note that any background information an employer receives during the background check process must not be used to discriminate against the applicant in violation of federal or Pennsylvania laws.

4. Notice Requirements for Adverse Hiring Decisions

If an employer decides not to hire an applicant based in whole or in part on the applicant’s criminal history, the employer must notify the applicant in writing that he or she has been rejected because of information in the report.

Policy Proofing for Employers

Conducting criminal background checks is an essential practice for employers to make informed hiring decisions. However, it is crucial for employers in Pennsylvania to adhere to the state’s specific laws and regulations to avoid legal pitfalls and promote fairness in the hiring process.

As an employer, it is important to gain an understanding of the legal framework governing criminal background checks, including compliance with federal and Pennsylvania-specific laws. Additionally, it is important to familiarize yourself with the unique requirements of your industry, as certain sectors may have additional regulations.

Employers should regularly review and update their company’s criminal background check policy to align with federal and Pennsylvania-specific laws, as well as best practices to ensure that their background check process is both legally compliant and equitable. This step will help employers avoid unintentional violations and ensure that all candidates are treated fairly.

For more guidance or assistance in navigating the complexities of criminal background checks in Pennsylvania, contact Margaret Grimm at (412) 594-5510 or mgrimm@tuckerlaw.com and Kaitlyn Smearcheck (717) 221-7963 or ksmearcheck@tuckerlaw.com.