Banning all ex-offenders from eldercare work ruled unconstitutional

Banning all ex-offenders from eldercare work ruled unconstitutional

A Pennsylvania appellate court has unanimously ruled against a state law that bans people with a wide range of criminal convictions from ever working in a nursing home or other long-term or elder care facilities.

On Dec. 30, a seven-judge panel of a Pennsylvania appellate court on Dec. 30 ruled as unconstitutional a state law imposing a lifetime ban of employment for people with a criminal record for convictions for violent crimes but also much less serious offenses, including a single, theft-related felony, two theft-related misdemeanors, a drug felony or forgery/document falsification.

The Pennsylvania Commonwealth Court, which hears cases in which the state is a party and administrative appeals affecting state agencies, ruled section 503(a) of the state’s Older Adult Protective Services Act violated the state constitution’s due process guarantee by being overly broad and making unsupported, inflexible assumptions.
The court’s unanimous opinion found the law so sweeping that it violated the constitution’s requirement of due process because the lifetime employment ban applied regardless of the type of job involved, how long ago the crime occurred, or any record of the offender’s rehabilitation. The court’s opinion faulted the challenged portion of the state law for making “no provision for consideration” of such factors.

The court’s ruling came in Peake et al. v. Commonwealth, a challenge brought by five ex-offenders ranging in age from 39 to 60, each with a conviction between 15 and 39 years earlier but no subsequent crimes.

Lead plaintiff Tyrone Peake had been arrested at age 18 while in a stolen car his friend had hotwired. Convicted of a felony, Peake was never imprisoned but spent three years on probation. He lost a number of jobs when his criminal record came to light, but by the age of 52 had earned an associate degree in behavioral health and compiled a long, successful record of employment.

Joining the challenge to the state law was Resources for Human Development, a non-profit social service group based in Philadelphia, which runs programs to serve persons with mental illness, retardation, and chemical dependency issues. The organization had employed Peake as a part-time counselor and wanted to promote him to a full-time position in a facility covered by the Older Adult Protective Services Act; his conviction as a teenager over three decades earlier prevented the organization from doing so.

Incredibly, the new decision was not the first time Pennsylvania courts had ruled the lifetime employment ban unlawful. In 2001, a few years after the state tightened the lifetime ban but did not apply it to workers who had been in a covered job for a year or more, a group of ex-offenders brought a similar challenge and won a ruling in the same court.

Two years later, the state’s Supreme Court also found the provision illegal (in part due to the seeming irrationality of exempting from the new rules workers who had been on the job for a year or more), but limited the scope of its opinion to the individuals who had brought the challenge – apparently anticipating the Pennsylvania General Assembly would revise the law, though the legislature failed to act over the ensuing dozen years.

In contrast, the new decision flatly declares the lifetime ban unconstitutionally overbroad and irrational and orders the three state agency defendants – the Departments of Aging, Health, and Human Services – not to enforce it.

While state officials have not yet indicated whether they will accept or appeal the decision, we at Prison Law Blog are very hopeful these and similar laws (such as the incredibly punitive Ban the Box) will soon be struck down also to help released inmates find meaningful work and reintegrate into their communities.

Christopher Zoukis is the author of <College for Convicts: The Case for Higher Education in American Prisons> (McFarland & Co., 2014) and <Prison Education Guide> (Prison Legal News Publishing, 2016). He can be found online at,, and