- Offenses relating to criminal mischief, criminal trespass, theft, forgery, or food stamps fraud; and
- Certain drug felonies defined as “qualifying offenses” (“unless a minimum sentence of 30 months or more of imprisonment or a maximum sentence of 60 months or more of imprisonment was imposed on the offense”). See 9102 and § 9122.1(a.1). (A single “qualifying offense” is eligible for clean slate sealing.)
Sealing is available only after an individual has paid any court-ordered restitution, while certain prior convictions may render one ineligible, as it may for misdemeanor sealing (see following section). See §9122.1 (b). A single drug felony made eligible for sealing by petition is also eligible for clean slate relief. See below, and § 9122.2(a)(1.1)
2. Sealing by petition of misdemeanors and ungraded offenses
A. 2016 sealing law: Effective November 14, 2016, courts were authorized to seal records of 2 nd and 3 rd degree misdemeanors and ungraded offenses carrying a penalty of no more than two years under an “order for limited access.” See 18 Pa. Cons. Stat. § 9122.1 (added by 2015 Pa. SB 166). (The styling of this relief was changed from “seal” to “limited access” in 2018. See below on the 2018 Clean Slate Act.) A 10-year conviction-free waiting period from conviction applied. § 9122.1(a)(1). Petitions were to be filed in the court of conviction and granted without a hearing if the prosecutor did not object. § 9122.1(c). A $132 filing fee is required (some counties have an additional county fee). 42 Pa. Cons. Stat. § 1725.7(a).
Under the 2016 law, persons with certain prior convictions were ineligible for sealing of otherwise eligible convictions: if the person has at any time been convicted of any offense punishable by more than two years’ imprisonment (i.e., a felony); four or more offenses punishable by imprisonment of one or more years; and a number of additional listed crimes, including simple assault (except in the 3 rd degree), witness intimidation, and sexual offenses requiring registration. See § 9122.1(b).
B. Petition-based sealing in the 2018 Act: The so-called Clean Slate Act of 2018 (2018 Act 56) made several significant changes in the 2016 sealing law (see below), expanding eligibility for sealing by petition to some first degree misdemeanors, and further limiting dissemination of sealed conviction records. See 18 Pa. Cons. Stat. § 9122.1 , as amended by 2018 Act 56 (Pa. HR 1419). The legislative findings accompanying the Act include that “after less violent individuals convicted of crimes have served their sentences and remained crime free long enough to demonstrate rehabilitation, the individuals’ access to employment, housing, education and other necessities of life should be fully restored.” See Act 56, findings.
First degree misdemeanors carrying a potential penalty of two years or less, and ungraded offenses carrying a penalty of up to five years, were made eligible for sealing by petition after a 10-year waiting period in which the individual must have been free of conviction for an offense carrying a prison term of one year or more (as opposed to free of arrest or prosecution). In 2023, this 10-year waiting period was shortened to seven years (HB 689). This 7-year period runs from the person’s conviction, since the phrase “following conviction or final release from confinement or supervision, whichever is later,” was deleted from the statute by the 2018 law.
The 2018 law added a new condition of eligibility that all court-ordered financial obligations of the sentence must have been satisfied. This requirement was modified by a 2020 law (HB440) that limited the repayment requirement to court-ordered restitution. See § 9122.1(a), as amended by 2018 Act 56 and 2020 Act 83. The court may not order sealing for certain offenses involving violence, firearms, or sexual misconduct that are punishable by more than two years in prison. See § 9122.1(b)(1), as amended by Act 56.
The 2018 Act also narrowed the types of prior convictions rendering a person ineligible for court-ordered sealing to conviction at any time of first degree felonies punishable by 20 years or more, conviction within 20 years of felonies punishable by seven years (shortened to 15 years by the 2023 law); conviction of four or more offenses punishable by imprisonment of two or more years; or conviction within 15 years of two or more offenses punishable by more than two years in prison, or a number of specific offenses, including indecent exposure, crime involving weapons or implements for escape, sex with animals, or failure to comply with registration requirements. See § 9122.1(b)(2).
3. “Clean slate” sealing of misdemeanors and drug felonies
The 2018 law provides for automated sealing (“clean slate” sealing) without a requirement to file a petition or (in most cases) to pay a filing fee, for a range of offenses that is similar (though not identical) to those eligible for sealing by petition. See § 9122.2, as added by 2018 Act 56. It also provides retroactive relief. The 2018 law specifies a process whereby the Administrative Office of the Courts and the State Police will identify cases whose records are eligible for “clean slate” sealing, lists of which will then be submitted to the commonwealth courts on a regular monthly basis for a judicial “order of nondisclosure.” The amendments enlarging eligibility for sealing by petition under § 9122.1 were effective December 26, 2018, while the “clean slate” provisions of the Act were effective June 28, 2019. The courts and state police were directed by law to identify all cases eligible for automated sealing between June 28, 2019 and June 27, 2020.
Eligibility for automated sealing under the new § 9122.2 is similar to but not exactly the same as eligibility for court-ordered sealing of misdemeanors convictions. In addition to second- and third-degree misdemeanors, any first degree misdemeanor punishable by imprisonment for no more than two years is eligible for clean slate sealing.
The 2023 Act (HB 689) made a single less serious drug felony (“qualifying offenses” defined in § 9101) eligible for clean slate (unless the person has any other felony conviction, or if the drug case includes three or more felonies). See §§ 9122.3(a)(i) and 9122.3(a)(ii). Notably, conviction of a felony “qualifying offense” is uniquely not disqualifying for this group of clean slate offenses. § 9122.3(a)(2)(i).
The same crimes ineligible for sealing by petition are also ineligible for clean slate sealing. See § 9122.3(a). However, the categories of prior offenses that make an individual ineligible for “clean slate” sealing are broader:
Conviction of a felony at any time (except for a “qualifying offense”);
Conviction of two or more offenses punishable by imprisonment of more than two years;
Conviction of four or more offenses punishable by imprisonment of one or more years; or
Conviction of any of the offenses in the catchall category in § 9122.1(b)(2).
See 9122.3(b)(2). As noted above, a felony conviction is uniquely not disqualifying in the case of “qualifying offenses.”
In addition, unlike sealing by petition, automated sealing is not available if a conviction punishable by five or more years or an ineligible offense arose out of the same case. § 9122.3(b)(3).
Any case ineligible for “clean slate” sealing may also proceed by court petition. § 9122.3(c)
4. Clean slate sealing of non-conviction records
The “Clean Slate Act” also provided for immediate eligibility for an “order for limited access” for “charges which resulted in a final disposition other than a conviction.” § 9122.2(a)(2). An order will issue “within 30 days after entry of the disposition and payment of each court-ordered obligation.” § 9122.2(b)(2)(i).
See additional provisions on non-conviction records, below.
5. Procedures for “clean slate” sealing
Specific procedures governing automated sealing are set forth in § 9122.2(b). They include monthly transmission by the Administrative Office for the Courts to the State Police central records repository of any record eligible for sealing, and application of a validation process by the State Police to winnow out ineligible records. Each Court of Common Pleas shall issue monthly orders of limited access covering all cases on the list returned by the State Police. Section 4 of the 2018 Act 56 provides that cases eligible for “clean slate” limited access shall be identified by the State Police and the courts within 365 days of the law’s enactment. See effective date discussion above.
Vacatur of sealing order: 2018 Act 56 also provides authority for a court to vacate an order for “clean slate” limited access upon petition by the prosecuting attorney, if the court determines that the order was issued erroneously, or if the order involved a conviction and its recipient is subsequently convicted of a misdemeanor or felony. See § 9122.4.
6. Effect of “order for limited access”
Unlike expunged records, records sealed under an “order for limited access” are not destroyed and remain available to criminal justice agencies, to agencies such as the Department of Human Services for child protective services uses, and (under the 2016 law) to state professional and occupational licensing agencies. 18 Pa. Cons. Stat. § 9121(b.1) and (b.2). Sealed records may not be disseminated to the general public, private employers, or landlords. Additionally, unless requested by an agency to whom disclosure is already authorized, “no individual shall be required nor requested to disclose information about the person’s criminal history records that are the subject of” an order for limited access. § 9122.1(a)(2). A 2020 bill added a provision, effective December 28, 2020, that a record subject to limited access “shall remain part of a person’s criminal history record information and shall be disclosed to a court for any relevant purpose in accordance with law, including sentencing.” See § 9122.5 as amended by 2020 Act 83. Another added provision allows information about sealed and expunged records to be used for research and statistical purposes. Id.
Limits on access by licensing boards: The 2018 Act 56 further limited access to sealed records, so that state licensing agencies will no longer have access, and access will be permitted only under a court order in cases involving child custody or civil liability for negligent hiring. Limits on access do not apply where federal law requires consideration of an applicant’s criminal history for purposes of employment, or where the Supreme Court requires information relating to judicial administration or the practice of law. See § 9121(b.2).
Voluntary disclosure: The 2018 Act also provides in a new § 9122.5 that individuals whose records have been expunged or are subject to limited access may not be required or requested to disclose related information, and “may respond as if the offense did not occur.” That section does not apply if federal law, including rules of a federal regulatory agency, requires disclosure. However, an expunged record or record subject to limited access may not be considered a conviction prohibiting employment under any state or federal laws that prohibit employment based on state convictions “to the extent permitted by Federal law.”
Employer immunity from liability: The 2018 Act grants an employer immunity from liability for any misconduct of an employee “if the misconduct relates to the portion of the criminal history that has been expunged or provided limited access.” § 9122.6. In addition, the 2023 Act expands employer immunity to include cases where “an individual voluntarily discloses [to their employer] the individual’s criminal history” that had been expunged or provided limited access.
B. Expungement of certain records
In contract to “orders of limited access,” in certain circumstances courts may order “expungement” of records, which is defined to mean “destruction” of the record.
Effect of expungement
“Expunge” is defined in 18 Pa. Cons. Stat. § 9102 as:
(1) To remove information so that there is no trace or indication that such information existed;
(2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes; or
(3) maintenance of certain information required or authorized under the provisions of section 9122(c) (relating to expungement), when an individual has successfully completed the conditions of any pretrial or posttrial diversion or probation program.
Once a conviction has been expunged, an offender may deny that he was ever convicted. Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987). Expunged records are destroyed, except that the prosecuting attorney and the central repository shall, and the court may, maintain a list of the names and other criminal history record information of persons whose records are expunged after the individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program. See Hunt v. Pa State Police, 983 A.2d 627, 633 (Pa. 2009) (“[i]n general terms, expungement is simply the removal of information so that there is no trace or indication that such information existed”). Such information shall be made available to any court or law enforcement agency upon request, but may be used solely for the purpose of determining subsequent eligibility for diversion programs, probation, and expungement, and for identifying persons in criminal investigations. 18 Pa. Cons. Stat. § 9122(c).
Pardoned or expunged convictions may not be considered by a licensing board, 18 Pa. Cons. Stat. § 9124(b), nor may summary offenses. Id. See Part III, infra.
1. Minor convictions
Summary offenses: Courts may expunge records of “summary offenses” only if the individual who is the subject of the record petitions the court, and has been free of arrest or prosecution for five years following the conviction for that offense. 18 Pa. Cons. Stat. § 9122(b)(3)(i); 234 Pa. Code Chs. 4 and 7. 6
Elderly offenders: The court may also order that conviction records be expunged where a person has reached age 70 and been arrest-free for 10 years following final release from confinement or supervision, or when the person has been dead for three years. 18 Pa. Cons. Stat. § 9122(b)(1) and (b)(2).
Underage drinking: Under a 2004 law, expungement is mandatory in summary convictions for underage drinking under 18 Pa. Cons. Stat. § 6308, if the applicant is over 21 at the time of asking for expungement. § 9122(a)(3).
2. Pardoned convictions
A gubernatorial pardon entitles the recipient to judicial expungement upon petition. Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987).
A 2020 bill added a provision to the clean slate law, effective December 28, 2020, that a pardoned conviction will be automatically sealed (“limited access”). See § 9122.2(4), as amended by 2020 Act 83. The 2023 law provided for automatic expungement of pardoned convictions. § 9122(a)(2.1), (a.1).
3. N on-conviction records, including ARD Probation
Criminal history information “shall be expunged” where no disposition in a case is indicated after 18 months, or otherwise where the court orders it. See 18 Pa. Cons. Stat. §§ 9122(a), (b). A 2020 bill added a provision, effective December 28, 2020, providing for automatic expungement upon a judicial determination that a “person has been acquitted of all charges based on the same conduct or arising from the same criminal episode following a trial and a verdict of not guilty.” See § 9122(4), as amended by 2020 Act 83. The court must provide notice in writing to the person and Commonwealth that the record information will be automatically expunged, and the Commonwealth has 60 days to object on the basis that the person does not meet the above standard. Id. Expungement “shall occur” within 12 months of date of the acquittal. Id. See also the discussion of constitutional right to expungement of non-conviction records below.
In addition, arrest and related records may not be disseminated to the public if three years has elapsed with no disposition indicated and no proceedings pending. 18 Pa. Cons. Stat. § 9121(b)(2)(i).
Expungement is also available in cases handled pursuant to Accelerated Rehabilitative Disposition (pre-plea diversion) where the defendant successfully completes the terms of ARD probation (except for certain sex offenses). 234 Pa. Code Rule 320; § 9122(b.1). ARD probation is available for first offenders in summary cases, pursuant to Pa. R. Crim. P. 300 et seq. It may also be ordered by the court in most cases, except that expungement is not available for certain violent offenses. § 9122(b.1). See also infra, on constitutional right to expungement of arrest records. For explanation of expungement procedure in ARD cases, see Foxworth v. Pennsylvania State Police, 402 F. Supp. 2d 523, 527-28 (E.D. Pa. 2005) (Pennsylvania State Police may reject applicant with prior record of ARD disposition, notwithstanding 18 Pa. Cons. Stat. § 9124(b)).
Expungement is specifically provided in cases of probation without verdict for nonviolent drug dependent first time offenders pursuant to the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-117; see also § 780-119. Records expunged under this authority may be used only for determining eligibility for additional terms of probation without verdict under that law’s authority. § 780-117(3). See Commonwealth v. Benn, 675 A.2d 261 (Pa. 1996) (district attorney abused his d iscretion in denying individual admission to ARD program based on records expunged pursuant to 35 P.S. § 780-117).
Partial expungement: In addition, courts have inherent authority to redact conviction records to expunge charges not resulting in conviction under certain circumstances. See Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. 2009), summarizing Pennsylvania caselaw holding that a defendant has a right to a hearing as to whether charges nol prossed may be expunged where the defendant has been convicted of one or more of the charges in an indictment, whereas changes dismissed pursuant to a plea agreement may not. See Commonwealth v. Lutz, 788 A.2d 993 (Pa.Super.2001). The theory is that dismissal of charges in a plea agreement is a contractual undertaking that binds the defendant, whereas the prosecutor’s decision not to prosecute particular charges is presumed to be because of an absence of proof.
Nondisclosure of arrest records and non-conviction records : See above.
4. Juvenile records
Expungement with complete destruction of records is available. 18 Pa. Cons. Stat. § 9123. Eligibility begins when one of the following criteria are met: the charges were dropped; six months have elapsed since a discharge from a consent decree or supervision; five years have elapsed since a delinquency adjudication; or a juvenile reaches age 18. Once eligible, a person may petition the court; the petition is granted in 30 days unless the DA shows good cause as to why it should not be. Id. Prosecutors retain adjudication information following expungement, and the information will be disclosed to law enforcement agencies upon request. § 9122(c).
In 2018, Section 3 of HR 1419 modified provisions relating to public disclosure of law enforcement records of juvenile adjudications, establishing new standards depending on whether the conduct occurred before or after the age of 14. See §§ 6307(b) and 6308(b) of Title 42, as amended by 2018 HR 1419.
5. Constitutional right to expungement of arrest records
The Pennsylvania courts recognize an individual’s constitutional right, in certain circumstances, to have his or her arrest records expunged. See, e.g., Commonwealth v. Armstrong, 434 A.2d 1205, 1206 (Pa. 1981); Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa. 1981); Commonwealth v. Malone, 366 A.2d 584, 587-88 (Pa. Super. Ct. 1976) (noting serious losses that can be caused by an arrest record, including reputational and economic injury). This right is an adjunct of due process and is not dependent upon express statutory authority. Armstrong, 434 A.2d at 1206. “In determining whether justice requires expungement, the Court, in each particular case, must balance the individual’s right to be free from the harm attendant to the maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Wexler, 431 A.2d at 879. The factors that must be considered in making such a determination include, but are not limited to:
[T]he strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.
Id. (quoting Commonwealth v. Iacino, 411 A.2d 754, 759 (1979) (Spaeth, J., concurring)). The decision to grant or deny a request for expungement of an arrest record lies in the sound discretion of the trial judge, who must balance the competing interests of the petitioner and the Commonwealth. See Commonwealth v. Waughtel, 999 A.2d 623, 624-25 (Pa. Super. 2010).
IV. Criminal record in employment & licensing
Pennsylvania addresses consideration of conviction in licensure and both public and private employment through the Pennsylvania Criminal History Record Information Act, 18 Pa. Cons. Stat. §§ 9101 et seq. However, Pennsylvania’s law has no mechanism for administrative enforcement, so it can only be enforced through the courts. The Attorney General or any other individual or agency may obtain injunctive relief and, in addition, any “aggrieved person” may bring an action for “actual and real damages,” punitive damages in an amount between $1,000 and $10,000 and “reasonable costs of litigation and attorney’s fees. § 9183. See also Elizabeth Gerlach, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, 8 U. Pa. J. Lab. & Emp. L. 981 (2006).
A. Employment
18 Pa. Cons. Stat. § 9125 provides employment protection only during the hiring stage and is not applicable to ongoing or post-employment adverse employment actions. It provides, for both public and private employment, “[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.” § 9125(b). (Certain job categories are exempted by statute elsewhere in code, like health care). Employers are required to notify applicants in writing if the decision to deny employment is based in whole or in part on criminal history. § 9125(c).
The courts have tended to interpret the direct relationship requirement in favor of employers. See Reynolds v. Murphy Ford, Inc., 2007 Phila. Ct. Com. Pl. LEXIS 146 (2007) (automobile salesman’s prior convictions for theft and burglary an appropriate basis for termination since sales representatives occasionally had access to customers’ confidential financial information and deposited monies); El v. Se. Pa. Transp. Auth., 418 F. Supp. 2d 659, 663-64 (E.D. Pa. 2005), aff’d, 479 F.3d 232 (3d Cir. 2007) (paratransit driver-trainee properly terminated under state law, as well as Title VII of the Civil Rights Act, solely on the basis of a forty-year-old conviction for his role in a gang-related homicide).
Section 9125 has been held to permit adverse action based on the fact of arrest alone. See Cisco v. United Parcel Servs., Inc., 476 A.2d 1340 (Pa. 1984) (mere arrest of a delivery person could jeopardize the reputation and business activities of UPS, so that UPS had a “plausible and legitimate reason” for discharging him, even though he was ultimately acquitted). See also Mallette v. U.S. Sec. Associates, Inc., Civil Action No. 07-3642, 2008 WL 4889025 (E.D. Pa. Nov. 12, 2008) (security guard properly dismissed from position as security guard at children’s hospital where serious criminal charges pending against him, notwithstanding his later acquittal).
In a suit for wrongful discharge, sovereign immunity has been held a defense to a suit against a public employer. See McNichols v. Dep’t of Transp., 804 A.2d 1264, 1267 (Pa. Commw. Ct. 2002) (“Wrongful discharge … is not one of the enumerated exceptions [to sovereign immunity].”); Poliskiewicz v. E. Stroudsburg Univ., 536 A.2d 472, 475 (Pa. Commw. Ct. 1988) (holding that sovereign immunity remains in effect unless it has been specifically waived).
These cases are discussed in Christine Neylon O’Brien and Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, 42 Wake Forest L. Rev. 991, 1005-1009 (2007).
Juvenile court adjudications do not “operate to disqualify the child in any civil service application or appointment.” 42 Pa.Cons.Stat. § 6354.
Per se employment barriers
Pennsylvania has one of the broadest laws in the country disqualifying people with any sort of criminal record from working with the elderly, mentally ill, or retarded, whether in nursing homes or personal care facilities. 35 P.S. §§ 10225.101 et seq. Although the scope of this law is unclear, the statute specifically identifies social service workers, hospital personnel, mental health professionals, clergy, counselors, librarians, and doctors. Penalties for violations of these laws involve both fines for the health care facility and potentially prison for facility administrators and owners. § 10225.505. This law was limited by the Pennsylvania Supreme Court in Nixon v. Commonwealth, 839 A.2d 277, 288-89 (Pa. 2003) (state could not refuse to re-employ convicted persons while continuing to employ similarly situated persons with no break in service).
The lifetime ban on employment of people with aggravated assault convictions in the Child Protective Services Law was held unconstitutional in 2004. See Warren Cnty. Human Servs. v. State Civil Service Comm’n, 844 A.2d 70, 74 (Pa. Commw. Ct. 2004), petition for appeal denied, 863 A.2d 1152 (Pa. 2004). Notwithstanding this decision, in 2006, the Pennsylvania legislature extended the law to a range of occupations in which workers have “significant likelihood of regular contact with children.” 23 Pa. Cons. Stat. § 6344.2(A). In 2015 a unanimous appellate decision from the Commonwealth Court struck down the lifetime ban for all crimes, finding that it violated due process rights under the state constitution. Peake v. Commonwealth, No. 216 M.D. 2015 (Pa. Commw. Ct. Dec. 30, 2015); see also Margaret Love, Employment bars in long-term health care facilities declared unconstitutional, Collateral Consequences Resource Center, https://ccresourcecenter.org/2016/01/05/employment-bars-long-term-health-care-facilities-declared-unconstitutional/ (Jan. 5, 2016).
State law also prohibits people with certain convictions from working in child care, long-term and elder care, police forces, and schools. 23 Pa. Cons. Stat §§ 6301 et seq.; 35 P.S. §§ 10225.101 et seq. A study by Community Legal Services of Philadelphia found over 40 professions in Pennsylvania in which an occupational license may be denied because of a criminal record, from accountant to veterinarian. See Community Legal Services of Philadelphia, Legal Remedies and Limitations on the Employment of Ex-Offenders in Pennsylvania (Aug. 2015), available at https://clsphila.org/learn-about-issues/legal-remedies-and-limitations-employment-people-criminal-records-pennsylvania.
Ban-the-box & non-discrimination in public employment
Effective July 1, 2017, a new commonwealth hiring policy will generally prohibit inquiries into criminal history on applications for commonwealth employment and limit consideration of criminal history in the hiring process. See http://www.oa.pa.gov/Policies/hr/Documents/TM001.pdf. The policy was was announced by Governor Tom Wolf in May of 2017. Regarding specific non-discrimination provisions, the policy provides as follows:
a. Consideration of arrests not leading to a conviction; annulled, expunged, or pardoned convictions; convictions for summary offenses; and convictions that do not relate to an applicant’s suitability for Commonwealth employment is prohibited.
b. In making hiring decisions, the hiring entity shall consider the public interest of ensuring access to employment for individuals with criminal records.
c. This HR Policy shall not affect positions in which a criminal conviction makes an applicant ineligible under law.
d. This HR Policy also shall not apply to employment positions responsible for the safeguarding or security of people or property, law enforcement, or those involving contact with vulnerable populations.
e. All departments, agencies, boards, commissions, and councils shall utilize the online job application system as required by ITPBUS008. No department, agency, board, commission, or council shall utilize its own job application form or questionnaire, unless such form or questionnaire is approved by the Secretary of the Office of Administration.
B. Occupational Licensing
Until relatively recently, Pennsylvania had a weak occupational licensing law dating from the 1970s. In 2020, the legislature enacted substantial reforms to improve access to licensure by individuals with a criminal history, including a “direct relationship” standard and a preliminary determination, and in 2024 additional regulatory changes limited the discretionary power of licensing boards to reject qualified justice-affected applicants through expansive lists of offenses categorically deemed “directly related.” The background of these reforms, beginning in 2017 with a directive from the Governor, is described below.
In 2017, Governor Tom Wolf directed the Bureau of Professional and Occupational Licensing in the Department of State to undertake a comprehensive study of licensing in Pennsylvania: Review of State Occupational and Professional Licensure Board Requirements, https://www.dos.pa.gov/ProfessionalLicensing/Documents/EO2017-03-Executive-Report-Occupational-Licensing.pdf. Among other things, relating to how licensing boards treat criminal records, the report found that
Criminal history bans also vary from board to board, with significant bans set in statute for most healthcare-related occupations. Lastly, the requirement to demonstrate “good moral character” is loosely defined and while this administration has provided guidance through policy statements regarding the use and review of criminal histories there is the potential for it to be applied unevenly across boards. The governor and administration officials should examine the impact of criminal history bans and “good moral character” requirements on ensuring Pennsylvania residents are able to engage in the workforce without unnecessary barriers.
The report found that, particularly with respect to health-related boards, “[a]mong the regional comparison group, Pennsylvania is an outlier in applying an automatic criminal history licensure ban.” See report at p. 25, also listing professions that have a 10-year bar. The report made a number of recommendations which provided new organization for the 29 boards and commissions that regulate 255 licensure types, a single disciplinary structure, and licensure by endorsement for people with out-of-state licenses. Most importantly, however, the report made a number of recommendations related to criminal records, that two years later made their way into SB637. Covered licenses include architects, pharmacists, veterinarians, podiatrists, psychologists, nurses, occupational therapists, nail technicians, and engineers. Trades requiring a license (e.g., contractors, including plumbers and electricians), teachers, lawyers and physicians are not covered by the new law.
Under preexisting law, licensing agencies “may consider convictions of the applicant of crimes but the convictions shall not preclude the issuance of a license, certificate, registration or permit.” 18 Pa. Cons. Stat. § 9124(a). In initial licensing decisions, licensing agencies may not consider records of arrest if there is no conviction of a crime based on the arrest; convictions which have been annulled or expunged; convictions of a summary offense; convictions for which the individual has received a pardon from the Governor; or “convictions which do not relate to the applicant’s suitability for the license, certificate, registration or permit.” § 9124(b)(2). In 2020, per SB637, convictions subject to limited access, including clean slate limited access, were added to the list of records that boards may not consider. Additionally, licensing agencies may suspend or revoke a license where the applicant has been convicted of a felony, or where the applicant has been convicted of “a misdemeanor which relates to the trade, occupation or profession for which the license, certificate, registration or permit is sought.” § 9124(c). 6 In either context, the licensing agency “shall notify the individual in writing of the reasons for a decision which prohibits the applicant from practicing the trade, occupation or profession if such decision is based in whole or part on conviction of any crime.” 18 Pa. Cons. Stat. § 9124(d).
2020 reforms
In 2020, per SB637, a new Chapter 31 was established in Title 63 of Pa. Cons. Stat. to govern consideration of criminal record in licensing. The new law:
- specifically supersedes any other provision of law that disqualifies an individual for a license or provides for “good moral character” findings, § 3113(a);
- establishes in § 3113(b) an elaborate two-stage inquiry for licensure:
- first, the board must determine, considering a list of crimes under § 3117, whether there is a “direct relationship” between the crime and the profession (defined in § 3102 as having “a direct bearing on the fitness or bearing on the fitness or ability to perform one or more of the duties of responsibility necessarily related to the profession trade or occupation”); If a board determines that an individual “has a criminal conviction that directly relates to the occupation,” the individual must then overcome a “rebuttable presumption” that issuing a license to them would “pose a substantial risk” to public safety, under a long list of specified factors in § 3113(c);
- and second, if a board determines that a conviction is not “directly related,” the board must then consider whether licensing the individual poses a public safety risk, as determined by an “individualized assessment” under a long list of specified factors in § 3113(c);
The law falls short in not ruling out consideration of dated or minor convictions, it does rely on a public safety standard for denial of a license, and gives those recently released from prison a chance to demonstrate their abilities. While existing law requires boards to defend record-related denials with written reasons, 18 Pa. Cons. Stat. § 9124(d), neither old nor new law provides an opportunity for an administrative appeal, requiring a disappointed applicant to file a lawsuit.
2024 State regulations
In 2024, pursuant to § 3117, the Pennsylvania Department of State, Bureau of Professional and Occupational Affairs adopted final regulations that significantly narrowed the number of offenses initially proposed by boards to be “directly related” to their licenses. Across the 29 Boards governed by the Department, the final rulemaking removed hundreds of offenses from the initial proposed lists for failing to “meet the statutory requirement of being directly related to a necessary duty or responsibility” of the licensed occupation. (The full lists of directly related offenses in the final regulations are proposed to be set out at 49 Pa.Code §§ 43b.423 through 43b.451, and can be found in the Bureau’s final form regulatory package.)
In addition, perhaps most significantly, convictions are no longer considered “directly related” if at least 5 years have passed since the conviction. § 43b.452.
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There have been periodic unsuccessful efforts by the Pennsylvania General Assembly in recent years to extend the period of disenfranchisement to felony offenders on parole and probation, in addition to those actually incarcerated. See, e.g., H.R. 1318, Session of 2005, vetoed by Governor Rendell in March of 2006. 25 Pa. Cons. Stat § 1301(a) provides that a person may not be permitted to register to vote if they have been confined in a prison “for a conviction of a felony” during the past five years. However, in Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw. Ct. 2000), aff’d, 783 A.2d 442 (Pa. 2001), the court held that there was no rational basis for precluding the registration of those who were incarcerated within last five years and who were not registered previously, when those who were legally registered prior to incarceration could vote upon their release. “Crime punishable by imprisonment of more than one year” is defined to exclude violations of “[t]he Vehicle Code” or “substantially similar offenses.” 42 Pa. Cons. Stat. § 4502(b). § 6105(d) provides in full as follows: Exemption. – A person who has been convicted of a crime specified in subsection (a) or (b) or a person whose conduct meets the criteria in subsection (c)(1), (2), (5), (7) or (9) may make application to the court of common pleas of the county where the principal residence of the applicant is situated for relief from the disability imposed by this section upon the possession, transfer or control of a firearm. The court shall grant such relief if it determines that any of the following apply:(1) The conviction has been vacated under circumstances where all appeals have been exhausted or where the right to appeal has expired.
(2) The conviction has been the subject of a full pardon by the Governor.
(3) Each of the following conditions is met:(i) The Secretary of the Treasury of the United States has relieved the applicant of an applicable disability imposed by Federal law upon the possession, ownership or control of a firearm as a result of the applicant’s prior conviction, except that the court may waive this condition if the court determines that the Congress of the United States has not appropriated sufficient funds to enable the Secretary of the Treasury to grant relief to applicants eligible for the relief.
(ii) A period of ten years, not including any time spent in incarceration, has elapsed since the most recent conviction of the applicant of a crime enumerated in subsection (b), a felony violation of The Controlled Substance, Drug, Device and Cosmetic Act or the offense which resulted in the prohibition under 18 U.S.C. § 922(g)(9).” The 1997 constitutional amendment requiring unanimity was occasioned by a notorious 1994 incident in which a man whose sentence had been commuted subsequently murdered two citizens and raped a third. See, e.g.,https://www.pennlive.com/editorials/2012/09/fatal_flaw_pardons_board_needs.html. The “relation to suitability” limitation on felony convictions in initial licensing under § 9124(b) does not apply to disciplinary actions under § 9124(c). See Gangewere v. Commonwealth, 512 A.2d 1301 (Pa. Commw. Ct. 1986).