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Pa. Transit Agency's Ex-Drug Convict Hiring Ban Challenged

May 5, 2017 / Media Coverage / Law360 — Matt Fair

A Philadelphia-area public transit agency is facing a putative class action in state court over an employment policy that challengers say illegally bars individuals with drug convictions from working as drivers or holding certain maintenance positions.

A trio of would-be Southeastern Pennsylvania Transportation Authority workers say the policy violates provisions of the state’s Criminal History Record Information Act allowing employers to consider a candidate’s convictions only so far as they relate to his or her suitability for the position being sought.

“Rather than making assessments of what drug-related crimes related to the suitability of applicants for particular jobs, SEPTA applied an across-the-board prohibition for a wide range of positions in violation of the explicit statutory prohibition in CHIRA,” the complaint said.

The complaint pointed to a written SEPTA policy that it said barred anyone with a felony or misdemeanor drug conviction from employment in all positions requiring the operation of a SEPTA vehicle, or requiring the maintenance, repair or operation of power facilities, substations, towers, signals, vehicles or rolling stock.

The case laid out the specific experience of three applicants — Frank Long, Joseph Shipley and Michael White — who allege they were each told that their prior drug convictions ran afoul of SEPTA’s hiring policies.

The complaint said that Long, whose conviction stemmed from a single drug arrest in 1994, was working at the time of his application to SEPTA as a bus driver for a Philadelphia-based school bus company.

While a SEPTA recruiter extended Long an oral job offer following an interview in October 2014, the complaint said the offer was revoked after a background check revealed his 20-year-old drug arrest and subsequent conviction.

Shipley, who was working as a conductor for an international transportation company when he applied for a SEPTA management position, said that he, too, was turned down for a job after disclosing his 2001 drug-related conviction.

“Mr. Shipley’s criminal history was not relevant to the [management] position for which he applied, for reasons including the nature of the crime, the age of the conviction, his employment history, and the years Mr. Shipley has been in the general population without any further convictions,” the complaint said.

White, meanwhile, similarly saw his application for a bus operator position denied following the disclosure of his drug-related convictions in 2006 and 2007. The final hiring decision came, he said, following what he said was a positive interview and a statement from a SEPTA employee that he would “receive more information about starting training.”

“SEPTA knew or should have known its obligations under CHIRA — including not to use broad blanket exemptions regarding criminal conviction histories and instead to limit use only to those situations where criminal conviction histories, in fact, established non-suitability for a particular position,” the complaint said. “These obligations are well established by the plain language of CHIRA and in longstanding case law.”

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The plaintiffs are represented by Ryan Hancock and Danielle Newsome of Willig Williams & Davidson and Adam Klein, Ossai Miazad, Lewis Steel, Christopher McNerney and Cheryl-Lyn Bentley of Outten & Golden LLP.

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The case is Frank Long et al. v. Southeastern Pennsylvania Transportation Authority, case number 170500784, in the Court of Common Pleas of Philadelphia County, Pennsylvania.

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