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Commonwealth Court Declares Lifetime Bans on Employment Unconstitutional


Commonwealth Court Declares Lifetime Bans on Employment Unconstitutional

On December 30, 2015, the Commonwealth Court of Pennsylvania unanimously declared unconstitutional a state statute that unfairly shuts out scores of people from employment in the long-term health care field and deprives elderly, sick and disabled people of caregivers.  The Court enjoined the Commonwealth from enforcing provisions of the Older Adults Protective Services Act that contain lifetime employment bans preventing people with criminal records from holding any job at a residential care facility and providing no opportunity for job applicants to demonstrate that they present little risk to vulnerable individuals. It is unknown whether the Commonwealth plans to appeal the Court’s ruling.

In a lawsuit filed in April, a group of private and nonprofit attorneys alleged that the lifetime employment ban contained in the Older Adults Protective Services Act (OAPSA) should be declared unconstitutional on its face so that qualified candidates have a fair chance at gaining employment.  OAPSA prohibits certain health care facilities — including nursing homes, residential care facilities, and home health care agencies — from hiring individuals who have certain criminal convictions.  The lifetime ban applies regardless of the age of the conviction, the circumstances of the conviction, and precludes any consideration of the rehabilitative efforts made by the applicants in the often-lengthy intervening time period.

As lead plaintiff Tyrone Peake’s story reveals, such lifetime bans are not rational and prevent qualified and hard-working people from working in one of Pennsylvania’s highest-growth fields. Thirty-three years ago, Mr. Peake, at the age of 18 years old, was convicted of attempted auto theft with several of his friends.  He served his probation without incident and has not been arrested for any crime in the more than three decades since.  Despite earning his Associate’s Degree in Behavioral Health and Human Services, he was denied several jobs working in OAPSA-covered facilities because of OAPSA’s lifetime ban.

Plaintiffs’ expert, a criminologist who studies recidivism, concluded that although past criminal conduct may correlate with a future risk of illegal behavior in the years immediately following a conviction, there is no such correlation for older or more minor convictions like Mr. Peake’s.  Based upon rigorous social science studies, he reported that after a certain amount of time from the conviction – four to seven years for a single conviction and no more than ten years for multiple convictions – an individual’s risk of offending again is no greater than that of any other member of the general population. 

The Commonwealth Court agreed with plaintiffs that lifetime bans are unconstitutional on their face.  First, it determined that the right of individuals to pursue a profession is

protected by the Pennsylvania Constitution, and held that state efforts to deprive people of that right must comport with due process.  The Court emphasized its long-held position that the constitution and public policy require the state to demonstrate a rational basis for prohibiting employment because of a criminal record, and that they must do so in a manner that is not “unreasonable, unduly oppressive or patently beyond the necessities of the case” but, instead, “must have a real and substantial relation to the objects sought to be attained.” 

Second, the Commonwealth Court determined that the statute created an unconstitutional “irrebuttable presumption,” whereby the legislature made sweeping generalizations about the ability of people with criminal convictions to work with care-dependent individuals.  The Court reasoned that while the legislature may enact laws that limit a person’s right to employment in pursuit of a valid governmental interest (such as protecting the vulnerable), it may not do so through applicable of a universal presumption of unfitness for employment that neither the applicant nor prospective employer has a means to challenge.

A previous lawsuit challenging OAPSA’s lifetime employment ban had resulted in a favorable decision for the individual named plaintiffs but did not involve a facial challenge to the ban as to all covered persons.  At the time, it was believed that the legislature would amend the statute in a way that addressed the due process violations.  In the 14 years since, the legislature has failed to do so.  In this week’s decision, the Commonwealth Court ruled that the statute not only violates the rights of the named individuals, but is unconstitutional on its face and that lifetime bans cannot be enforced.

“I am thrilled to have worked with such a fantastic team of talented attorneys to represent the interests not only of our deserving clients but also of the hundreds of thousands of Pennsylvania citizens affected by this unconstitutional law,” said private attorney Tad LeVan of LeVan Law Group LLC, who led the litigation effort on behalf of the plaintiffs.  “OAPSA’s draconian lifetime employment ban, which bars otherwise qualified individuals from employment, is not just unconstitutional – it is also bad public policy.  We are grateful that the unanimous Commonwealth Court recognized the numerous fundamental flaws in the statute and enjoined the Commonwealth from further enforcement of the unconstitutional law.”

Janet Ginzberg, Senior Staff Attorney at Community Legal Services, believes that this strong decision will have important implications for other laws and regulations that unduly bar qualified individuals from being able to work in their chosen professions.

The litigation team consists of Community Legal Services (CLS), Tad LeVan of the LeVan Law Group LLC, Professor Seth Kreimer of the University of Pennsylvania Law School, and Robert LaRocca of Kohn, Swift & Graf, P.C.  A copy of the Peake v. Commonwealth of Pennsylvania decision can be found here.


About Community Legal Services, Inc.:

Community Legal Services, Inc. was established by the Philadelphia Bar Association in 1966. Since then, CLS has provided legal services to more than one million low-income Philadelphia residents, representing them in individual cases and class actions, and advocating on their behalf for improved regulations and laws that affect low-income Philadelphians. As the city's largest provider of free legal services, CLS assists more than 11,600 of Philadelphia’s poorest residents with their legal problems each year. For more information, contact 215-981-3700 or visit