As a reminder for all Pennsylvania employers, a recent federal court decision confirms that how you learn about an applicant’s criminal history does not change your legal obligations.

On January 28, 2026, the U.S. Court of Appeals for the Third Circuit held that Pennsylvania’s Criminal History Record Information Act (CHRIA) applies regardless of how an employer obtains criminal history information—including when an applicant voluntarily discloses a conviction during the hiring process. In Phath v. Central Transport LLC, the court rejected the idea that CHRIA applies only when an employer orders a formal background check.

Importantly, the decision does not prohibit employers from asking about convictions or require them to hire every applicant with a criminal record. Rather, it clarifies that once criminal history information is obtained—by any method—CHRIA’s notice and use requirements still apply. Employers cannot avoid these obligations by relying on self‑disclosure instead of a background report.

This update applies to all employers making hiring decisions in Pennsylvania.

What Employers Need to Do

• Centralize and Pause Decisions: Employers should route all criminal history information (self-disclosures, background reports, public sources) to HR/Compliance and should not allow interviewers to make on-the-spot disqualification decisions.

• Apply and Document the CHRIA Suitability Test: Consider only felony or misdemeanor convictions and only to the extent those convictions relate to the job’s duties. They should document their analysis (offense, time elapsed, duties, and risk).

• Send the Required CHRIA Notice, in Writing: If an employer declines to hire, in whole or in part, based on criminal history information, the employer must notify the applicant in writing.

• Layer the Fair Credit Reporting Act (FCRA) When Applicable: If a consumer reporting agency (CRA) report is used, the employer must provide FCRA pre-adverse and final adverse action notices in addition to CHRIA’s notice. Self-disclosures or employer-conducted checks that do not use a CRA generally do not trigger FCRA, but CHRIA still applies.

• Apply Philadelphia’s Overlay (if the Role is in the City): Consider using seven-year felony and four-year misdemeanor look-backs, excluding summary offenses, conducting an individualized assessment (using a reasonable person risk standard), and providing at least 10 business days for a pre-adverse rebuttal.

• Train, Audit, and Retain: Train managers that applicant self-disclosure does not eliminate CHRIA obligations, audit a sample of hiring files each quarter, and retain assessments and notice documentation for at least six years based on current limitations-period trends.

Overview

• CHRIA Statewide Rules: Employers may consider convictions only to the extent they relate to job suitability, and they must issue a written notice if a no‑hire decision is based, in whole or in part, on criminal‑history information.

• What Counts as “Criminal History Record Information”: This term includes information collected by criminal‑justice agencies from the start of a criminal case, such as identifying information, arrests or charges, and case outcomes. For hiring purposes under CHRIA, employers should focus on convictions that are job‑related. Arrests or charges that did not result in a conviction are not used when evaluating job suitability.

• Potential Remedies: An aggrieved person may recover actual damages (at least $100 per violation), costs and attorneys’ fees, and punitive damages ($1,000–$10,000 per willful violation).

• FCRA Interplay: CHRIA applies even when FCRA does not (for example, when there is a self‑disclosure or an employer‑run check without a CRA). When a CRA report is used, FCRA pre‑adverse and adverse action steps are required in addition to CHRIA.

• No Ban on Asking: The Third Circuit did not prohibit employers from asking applicants about criminal convictions. Instead, the court clarified that once an employer receives criminal‑history information—no matter the source—CHRIA’s job‑relatedness and notice requirements apply.

Why this matters

• No Self‑disclosure Workaround: Employers cannot avoid CHRIA by asking applicants to disclose their criminal history. Once an employer receives a qualifying criminal history, CHRIA obligations are triggered.

• Layered Compliance is Mandatory: Statewide CHRIA plus Philadelphia’s FCRSS (if applicable) plus FCRA where a CRA report is used—omitting any layer risks invalid decisions and liability.

• Exposure can Scale Quickly: CHRIA’s per‑violation damages, fee‑shifting, and punitive damages create significant risk, including potential class exposure if processes are systemic. Public entities have also faced CHRIA claims, and some courts allow a six‑year limitations period—so record retention should be planned accordingly.

• Implications for Hiring Decisions: Once an employer is “in receipt of information which is part of an employment applicant’s criminal history record information file,” CHRIA applies, meaning:
  • (a) only convictions related to job suitability may be considered; and
  • (b) if the employer declines to hire in whole or in part based on that information, it must provide written notice.

• The Court Emphasized that the statute hinges on the nature of the information, not its source.

Additional Information

• Assuming Self‑disclosure Avoids Compliance: Employers face risk if they believe CHRIA applies only when a formal background check is run. Once criminal‑history information is received — even if volunteered by the applicant — CHRIA obligations are triggered.

• Improper Use of Criminal History in Hiring Decisions: Considering arrests, charges without conviction, or convictions that are not job‑related can violate CHRIA and invalidate a hiring decision.

• Failure to Provide Required Written Notice: If an employer declines to hire an applicant in whole or in part based on criminal‑history information, failing to issue the required CHRIA written notice creates immediate liability exposure.

• Missing Layered Compliance Requirements: Employers operating in Pennsylvania — and especially Philadelphia — risk noncompliance if they fail to apply all required layers, including CHRIA, Philadelphia’s Fair Criminal Record Screening Standards (where applicable), and the federal Fair Credit Reporting Act when a consumer report is used.

• Inadequate Assessment, Training, and Retention Practices: Inconsistent or undocumented job‑related suitability assessments (failing to show how a conviction relates to duties, time elapsed, and risk), combined with untrained hiring managers and weak record‑retention, increase the likelihood of violations and undermine defenses in audits, investigations, and litigation—especially where longer statutes of limitations apply.

• Escalating Financial and Litigation Exposure: CHRIA allows for actual damages (minimum $100 per violation), attorneys’ fees, costs, and punitive damages for willful violations.

Source Reference

• US Court of Appeals for the Third Circuit – Rodney Phath Vs. Central Transport LLC (No. 25-1028)

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