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COMMERCIAL INVESTIGATIONS LLC
Recently, New York State passed two laws designed to encourage employment of individuals with prior criminal convictions. The first
law imposes new notice requirements on employers requesting criminal background checks. The second law provides additional
protection for employers against negligent hire and retention claims.
Legal Background
New York limits the circumstances under which an employer can deny employment based on an individual’s prior criminal history. An
employer may not refuse to hire (or fire) an individual because of a criminal conviction, unless the employer can demonstrate either:
(1) a direct relationship between the criminal offense and the employment sought; or (2) that granting the employment sought would
create an unreasonable risk to the property or safety of others.
For these analyses, New York law provides various factors, which are found in Article 23-A of the N.Y. Correction Law (“Article 23-A”).
These factors for consideration include the following:
An employer may be liable for unlawful discrimination if the employer refuses to employ an individual without demonstrating a direct
relationship between the offense and the employment sought or an unreasonable risk to property or safety based on these factors.
New Notice Requirement
New York will require employers to notify applicants of the anti-discrimination rule and an employer’s obligation to consider the Article
23-A factors. Beginning February 1, 2009, employers obtaining criminal background checks must:
The employer must provide Article 23-A to the subject: (1) prior to requesting a criminal background investigation and (2) when the
consumer reporting agency (e.g., background investigation firm) provides the report (with criminal background information) to the
employer. An employer must comply with these requirements beginning February 2009.
New Protection Against Negligent Hire Claims
The second law provides additional protection from negligent hire or retention claims. Negligent hire or retention claims arise when:
For example, an employer who fails to conduct a background check may be liable for hiring an employee who is a convicted violent sex
offender, if that employee later sexually assaults a third party during the course of his employment. The prior criminal history is
evidence the employee had a proclivity to engage in violent sexual conduct. If the employer could have reasonably discovered this
conduct (e.g., with an appropriate background check), the employer might have prevented that particular attack by refusing to hire the
employee.
The new law excludes evidence of the employee’s criminal background when the employer made a reasonable, good faith
determination that the Article 23-A factors support hiring (or retaining) the employee.
This new protection adds incentive for employers to conduct criminal background checks and conduct the Article 23-A analysis. If an
employer learns of a conviction and conducts the Article 23-A analysis reasonably and in good faith, evidence of the conviction will not
be considered in deciding whether the employer negligently hired or retained the employee. This could, in many cases, result in a
dismissal of the claim.
In practice…
When assessing your screening procedures, the following are critical areas for review:
Periodic review of your screening procedures will help ensure you are taking appropriate steps to protect your company from legal
liability.
By Joanmarie M. Dowling, Esq., SPHR
Bond Schoeneck & King, PLLC
518-533-3230
jdowling@bsk.com
law imposes new notice requirements on employers requesting criminal background checks. The second law provides additional
protection for employers against negligent hire and retention claims.
Legal Background
New York limits the circumstances under which an employer can deny employment based on an individual’s prior criminal history. An
employer may not refuse to hire (or fire) an individual because of a criminal conviction, unless the employer can demonstrate either:
(1) a direct relationship between the criminal offense and the employment sought; or (2) that granting the employment sought would
create an unreasonable risk to the property or safety of others.
For these analyses, New York law provides various factors, which are found in Article 23-A of the N.Y. Correction Law (“Article 23-A”).
These factors for consideration include the following:
- the public policy to encourage employment of individuals with prior convictions;
- the specific duties and responsibilities of the position;
- the bearing of the criminal offense on the applicant’s fitness or ability to perform the duties and responsibilities of the position;
- the time since the crime was committed;
- the applicant’s age at the time the crime was committed;
- any information the applicant has produced regarding rehabilitation; and
- the legitimate interest of the employer in protecting property and the safety and health of individuals or the general public.
An employer may be liable for unlawful discrimination if the employer refuses to employ an individual without demonstrating a direct
relationship between the offense and the employment sought or an unreasonable risk to property or safety based on these factors.
New Notice Requirement
New York will require employers to notify applicants of the anti-discrimination rule and an employer’s obligation to consider the Article
23-A factors. Beginning February 1, 2009, employers obtaining criminal background checks must:
- provide a copy of Article 23-A to the individual about whom such a report was requested, and
- post Article 23-A and any related regulations in a conspicuous location at the employer’s premises.
The employer must provide Article 23-A to the subject: (1) prior to requesting a criminal background investigation and (2) when the
consumer reporting agency (e.g., background investigation firm) provides the report (with criminal background information) to the
employer. An employer must comply with these requirements beginning February 2009.
New Protection Against Negligent Hire Claims
The second law provides additional protection from negligent hire or retention claims. Negligent hire or retention claims arise when:
- an employee with a criminal conviction injures someone or causes other harm during the employee’s course of employment;
- the criminal conviction demonstrates the employee had a proclivity to engage in the wrongdoing that caused the injury or harm;
- the employer knew or should have known of the employee’s proclivity; and
- the employer could have prevented the injury or harm by refusing to employ the employee.
For example, an employer who fails to conduct a background check may be liable for hiring an employee who is a convicted violent sex
offender, if that employee later sexually assaults a third party during the course of his employment. The prior criminal history is
evidence the employee had a proclivity to engage in violent sexual conduct. If the employer could have reasonably discovered this
conduct (e.g., with an appropriate background check), the employer might have prevented that particular attack by refusing to hire the
employee.
The new law excludes evidence of the employee’s criminal background when the employer made a reasonable, good faith
determination that the Article 23-A factors support hiring (or retaining) the employee.
This new protection adds incentive for employers to conduct criminal background checks and conduct the Article 23-A analysis. If an
employer learns of a conviction and conducts the Article 23-A analysis reasonably and in good faith, evidence of the conviction will not
be considered in deciding whether the employer negligently hired or retained the employee. This could, in many cases, result in a
dismissal of the claim.
In practice…
When assessing your screening procedures, the following are critical areas for review:
- Are we conducting appropriate background checks for each employee classification, with special consideration for those who
have access to financial information, cash, or who work with little or no supervision?
- If the screening process reveals a criminal conviction, do we conduct an Article 23-A analysis?
- Do we comply with federal and state Fair Credit Reporting Acts authorization and notification requirements?
Periodic review of your screening procedures will help ensure you are taking appropriate steps to protect your company from legal
liability.
By Joanmarie M. Dowling, Esq., SPHR
Bond Schoeneck & King, PLLC
518-533-3230
jdowling@bsk.com
News Release
FOR IMMEDIATE RELEASE
FOR IMMEDIATE RELEASE
Contact:
Michelle Pyan, Commercial Investigations LLC President
518-271-7546
michellepyan@commercialinvestigationsllc.com
Michelle Pyan, Commercial Investigations LLC President
518-271-7546
michellepyan@commercialinvestigationsllc.com
| OBTAINING CRIMINAL BACKGROUND INFORMATION? WHAT EMPLOYERS NEED TO KNOW… (ARTICLE 23-A OF THE CORRECTION LAW) |
COMMERCIAL INVESTIGATIONS LLC (CI), a full service licensed private investigative agency, offers thorough
and affordable employment BACKGROUND INVESTIGATIONS. CI provides accurate, timely, cost effective and
fully compliant reports supported by high standards of customer service. CI also offers consulting services to
assist organizations with reviewing and auditing their BACKGROUND INVESTIGATIONS processes for compliance,
effectiveness and efficiency. CI provides the PROACTIVE TRUTHTM regarding applicants, thereby reducing
turnover and limiting exposure to civil liability.
and affordable employment BACKGROUND INVESTIGATIONS. CI provides accurate, timely, cost effective and
fully compliant reports supported by high standards of customer service. CI also offers consulting services to
assist organizations with reviewing and auditing their BACKGROUND INVESTIGATIONS processes for compliance,
effectiveness and efficiency. CI provides the PROACTIVE TRUTHTM regarding applicants, thereby reducing
turnover and limiting exposure to civil liability.
DATE: DECEMBER 2008
| By Joanmarie M. Dowling, Esq., SPHR Bond Schoeneck & King, PLLC |