One year after the law passed in June 2018, the Pennsylvania Clean Slate Act has taken effect. The law requires that certain criminal records be sealed from public view. Clean Slate creates an automated computer process to seal arrests that did not result in convictions within 60 days; summary convictions after 10 years; and certain second- and third-degree misdemeanor convictions, pending no misdemeanor or felony convictions for 10 years after the conviction.

It is expected that, by June 2020, over 30 million cases will be sealed—over half of the charges in the court database system. Automated sealing addresses “second chance gap” problem established by empirical studies, which show that only a very small percentage of individuals eligible to file petitions to clear their records actually do so. The law clears the records for them, automatically.

Although records under seal cannot not be viewed in most pre-employment background screening scenarios, such records under Clean Slate can be viewed by law enforcement, the courts, employers who use FBI background checks, and employers who are required to consider the records under federal law.

Under Pennsylvania Clean Slate, some first-degree misdemeanors are eligible to be sealed, excluding violent and sexual offenses. Second-degree simple assault could be automatically sealed after 10 years.

Larry Henry, an attorney with over 30 years in employment law and author of the CRAHelpDesk newsletter, suggests that Pennsylvania Clean Slate could complicate criminal records searches conducted by Consumer Reporting Agencies (background screening firms, as defined by the federal Fair Credit Reporting Act) if the databases used in searching are not current with criminal records in Pennsylvania already under seal, creating situations in which CRAs could be reporting records that are no longer available—and, therefore, are unverifiable.

On the other hand, with respect to the law’s impact on employers, Henry says that sealing criminal records may have an unintended favorable consequence for employers by providing “protection [against] negligent hiring claims if the past criminal case that are sealed [were to] relate to a similar act committed while employed.” He cites Pennsylvania statue 18 Pa. C.S. §9122.6, which states:

“§ 9122.6.  Employer immunity from liability. An employer who employs or otherwise engages an individual whose criminal history record has been expunged or to which limited access has been applied under section 9122.1 (relating to petition for limited access) or 9122.2 (relating to clean slate limited access) shall be immune from liability for any claim arising out of the misconduct of the individual, if the misconduct relates to the portion of the criminal history record that has been expunged or provided limited access.”

TruView continues to recommend that our Clients conduct local record checks and not use multi-jurisdictional databases (such as “national criminal database” or “all-county criminal database”) as standalone searches, despite their tempting price points.