Thomas A. Barstow//September 10, 2019
Thomas A. Barstow//September 10, 2019
Observers of Pennsylvania’s new clean slate law see few pitfalls that should worry employers as they adjust to the new dynamic under which millions of state residents each month will have their criminal records wiped clean.
The effort comes at a time of historic low unemployment. That means that employers will benefit from a new pool of workers, while workers eligible for having their records cleaned will be able to apply for jobs without concern that a past misdeed will derail their hopes for a job or promotion, observers said.
The law was passed by the legislature and signed by Gov. Tom Wolf in June 2018 and took effect in December. The automatic mechanisms to remove criminal records from state databases started in June of this year. More than 30 million criminal records will be sealed over the next year at a pace of nearly three million per month. Several observers noted that the proposal drew political support from both Republicans and Democrats, who worked together to carefully craft the law so there was minimal cost to taxpayers and to ensure that employers were protected.
“The almost unanimous votes speak to the support,” said Jonathan A. Segal, a partner in the Philadelphia office of law firm Duane Morris LLP. “It was a problem that everyone needed to have resolved.”
As an attorney, Segal represents the interests of employers and is the managing principal in the Duane Morris Institute, which is the educational arm of the firm’s employment practice group. He also is legislative director of the statewide Society for Human Resource Management. He has studied the clean slate law with an eye toward protecting employers. He has since sought to broaden support for federal legislation though the national SHRM.
He has been impressed with how employer-focused groups – from local chambers of commerce to the statewide Pennsylvania Chamber of Business and Industry – joined with employee-focused groups and those interested in criminal-justice reform to back the legislation.
“I haven’t heard any HR concerns about this bill,” he said.
Under the clean slate law, people whose records have been cleared can honestly answer on job applications that they do not have a criminal record. Essentially, the state will “automatically seal arrests that did not result in convictions, summary convictions from more than 10 years ago, and some second and third-degree misdemeanor convictions, as long as you have not had any other misdemeanor or felony convictions for a period of 10 years after the time of conviction,” according to information on the website www.MyCleanSlatePA.com, which serves as an information clearinghouse for the law.
Because the law is so new, several observers noted there might be some unintended consequences. For example, if an employer’s application has not been updated to include language that factors in clean slate, an employee might be put in an uncomfortable situation of appearing to not be truthful.
Segal has been counseling employers to update applications to remove potential conflicts. For example, in sections that ask job candidates about past convictions, the language should be clarified so that a candidate does not have to include any past problem that has since been “sealed, erased, expunged, pardoned, dismissed, annulled, discharged or otherwise eliminated.”
Such language would pretty much cover anyone falling under the clean slate law, Segal said. He also advises employers to clearly notify third-party vendors – especially those from other states – that they are not to include information in background checks that would now be cleared under the new law.
As carefully as the legislation was crafted, and even if employers take all the right steps, there still might be issues that crop up as the law takes full effect. Sharon Dietrich, litigation director at Community Legal Services Inc. in Philadelphia, said she uses the analogy of “ants under a refrigerator.” Even if you think you have done everything to eradicate all problems and to make sure nothing goes wrong, there still might be an ant or two that gets out, said Dietrich, who is among those who started the clean slate effort.
Segal agreed, saying that no legislation can be crafted with every contingency completely covered, which is why laws can be amended. Reasonable people can get together and draw lines, such as the timetables under clean slate, and then reasonable people down the road can decide that the lines need to be redrawn as more information comes in, he said.
“This is what happens with experience,” Segal said. “So, I am not worried about unforeseen consequences.”
Dietrich, Segal and David K. Trevaskis, who is the pro bono coordinator with the Pennsylvania Bar Association, said the law took in all angles to achieve broad support. In fact, they said, other states likely will model laws after Pennsylvania’s.
“How often is Pennsylvania the first in the nation?” said Trevaskis. “We should be incredibly proud that our state is leading on this.”
Because states control their own court records, Dietrich said, the momentum is likely to be state by state.
“Many other states will do this,” said Dietrich.
National legislation, however, might help with similar efforts in federal courts, several observers noted.
The low cost was one reason for the success in Pennsylvania. Computer programs can automatically wipe out records. Initially, some detractors were concerned about the logistics, as well as the cost of sending out 30 million notifications to people who would have their records cleaned, several experts said. But critics were won over by the idea that the changes would happen automatically. People will need to be proactive as far as determining whether their records have been updated. They can do so by going to www.MyCleanSlatePA.com and doing some searches.
“No one is sending you a notice,” said Trevaskis. But for those who stay on top of the automatic purges, their lives can be changed forever, he and others said. It is important to know the details, such as paying fees and costs that are owed, as well as restitution, he said. Files will not be automatically cleaned if such things have not been resolved.
Another potential issue is that some databases, such as those of the FBI, will not be updated. That means that people applying for a federal job that requires an FBI background check still will have the past violations show up. And then there is the whole dynamic of the internet, where information can be spread to numerous corners and reside forever. The law also doesn’t change records for Pennsylvania residents whose violations were in another state, experts said.
Supporters note that someone convicted of a non-violent crime and who hasn’t repeated an offense in 10 years is no more likely to commit another crime than someone who had never committed a crime. Before, people who were convicted of minor crimes would have to find an employer who was sensitive to their plight; others might have had to join a family business or maybe start their own entrepreneurial venture, Trevaskis said. But people without those options were hampered from starting over in a good job, he added.
“What this does, for the regular person, it gives them a shot,” Trevaskis said.
He agrees the effort will catch on nationwide and that future changes will make the law even better. For example, juvenile records are not automatically cleaned. That is something that improvements could address, he said.
“Where we are now is nowhere near where we will be a year from now,” Trevaskis said.
But, perhaps most importantly, a social issue and workplace issue are being addressed with one piece of creative legislation, he and others said. A person who made a dumb mistake years before will not carry the burden for a lifetime, Trevaskis said.
“A lot of people are going to get jobs that they otherwise couldn’t get,” Trevaskis said. “This is about employment. It’s about jobs. It’s about making the world a better place.”