Responding in part to a 2007 study which found that New York employees were largely unfamiliar with State laws regulating an employer’s use of past convictions for employment-related decisions and in support of the State’s goal to prevent discrimination on the basis of criminal records, the New York Legislature recently amended the State’s general business and labor laws to require employers to disseminate and post notice to job applicants and employees of their rights with respect to, and an employer’s limitations on the use of, information on criminal convictions. The posting and notice requirements take effect on February 1, 2009.
Section 296 of the New York Executive Law makes it unlawful for an employer to deny employment to an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of “good moral character” due to his or her prior conviction of a criminal offense, when such a denial is a violation of New York’s Correction Law Article 23-A (Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses). N.Y. Executive Law § 296.
Under Article 23-A, employers of 10 or more employees are expressly proscribed from making adverse hiring or termination decisions based upon an individual’s conviction record unless: (1) there is a direct relationship between the prior criminal offense(s) and the specific employment position sought or held by the individual; or (2) hiring or continuing to employ the individual would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. Before determining that an individual’s criminal conviction record bars employment or continued employment, Article 23-A requires that those employers carefully consider each of the following factors:
- New York’s public policy encouraging the employment of previous convicts;
- The specific duties and responsibilities of the employment position sought or held by the individual;
- The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual’s fitness or ability to perform one or more job duties or responsibilities;
- The time that has elapsed since the occurrence of the criminal offense(s);
- The age of the applicant or employee at the time of the conviction;
- The seriousness of the offense(s);
- Any information produced by the person or on his or her behalf, regarding rehabilitation and good conduct; and
- The employer’s legitimate interest in protecting its property as well as the safety and welfare of its employees and clients as well as the general public.
Notably, an employer must also give consideration to any certificate of relief from disabilities or certificate of good conduct issued to an individual, which certificate, by law, creates a rebuttable presumption of rehabilitation regarding the offenses to which it relates.
N.Y. Correction Law § 750, et seq.
Statutory Amendments and Rebuttable Presumption Now Granted by Law
Recent statutory amendments to the New York Fair Credit Reporting Act (“NYFCRA”) and the New York Labor Law, which were enacted through a single legislative bill, provide: (1) an employer seeking to conduct a criminal background check or obtain an investigative consumer report (which would disclose criminal history) must distribute a copy of Article 23-A to the subject of the report (i.e., applicants and employees) prior to conducting the check or requesting a report; (2) an employer receiving a consumer report or investigative consumer report from a consumer reporting agency that contains information of criminal convictions must provide a second printed or electronic copy of Article 23-A to the subject of the report upon receipt of the report; and (3) all employers must post a copy of Article 23-A in a “visually conspicuous manner” and “a place accessible” to all employees.
These amendments go into affect on the heels of a related amendment to the New York Executive Law – evidently aimed to temper the State’s incentive encouraging the greater employment of individuals with criminal histories – which provides a safe harbor for employers in defense to claims of negligent hiring or retention. N.Y. Executive Law § 296. Specifically, the Executive Law amendments provide that there shall be a rebuttable presumption in favor of excluding information regarding a prior conviction of an applicant or employee from evidence in a case where an employer, after learning about an applicant or employee’s past criminal history, balanced the Article 23-A factors and made a good faith determination that those factors weighed in favor of employing or retaining the applicant or employee.
What Does This All Mean?
Significantly, the new notice and posting requirements do not limit or discharge the separate notice and disclosure requirements previously existing under the New York General Business Law or the federal Fair Credit Reporting Act (“FCRA”) with respect to background checks (including but not limited to the obligation to provide advance disclosures and written authorization before conducting any such investigation). Thus, employers located in the State of New York and those employers located outside of the State of New York but hiring employees within the State should carefully review their application packages to assure that, in addition to other legally-mandated disclosures and authorization forms, the Article 23-A notice is included. These employers must also assure that they timely post Article 23-A in the same manner and locations that they post other employment-related postings – such as in hard copy on an employer’s bulletin board or electronically on its intranet system (for your convenience, a copy of Article 23-A can be accessed by clicking here). It is also prudent for these employers to review their existing employment applications, employee handbooks and other policies and procedures to assure that they include statements prohibiting discrimination based on criminal convictions (except where otherwise permitted by law, such as when there is a direct relationship between the prior criminal offenses and the specific employment position sought or held or where an unreasonable risk to property or the safety or welfare of specific individuals or the general public arises if a previously convicted applicant or employee is hired or retained).
Further, human resources personnel should be appropriately trained on how to handle and weigh Article 23-A factors in order to mitigate the risk of both discrimination and negligent hiring or retention claims. In this regard, it is recommended that prudent employers evaluate each notice of an applicant’s or employee’s conviction(s) on a case-by-case basis rather than simply applying hard and fast exclusionary rules in order to independently compare the nature, qualifications and duties of the position at issue and carefully determine whether the conviction does, in fact, bear directly on the individual’s suitability for employment or continued employment in the position. Moreover, where a background check or investigative consumer report uncovers a history of arrests or convictions after which an applicant is denied a position or an employee is discharged, it is highly recommended that the employer carefully document the basis for the decision – including its consideration of all Article 23-A factors – in the event that it is later necessary to defend the decision in court or before a regulatory agency.
If you have any questions regarding the permissible use of an applicant’s criminal history in your jurisdiction, please contact the authors of this Article, one of the members of Reed Smith’s Labor and Employment team listed below, or the Reed Smith attorney with whom you regularly work.