On February 5, 2009, amendments to New York's Fair Credit Reporting Act (NY FRCA) and Labor Law will take effect. The amendments, enacted as part of a single legislative bill, concern employers handling of employees and job applicants with prior criminal histories and directly implicate New York Correction Law Article 23- A (Article 23-A). Article 23-A prohibits employers from unlawfully discriminating against employees and job applicants who were previously convicted of a criminal offense. The amendments reflect the legislature's continuing effort to assist released prisoners in finding employment with the aim of reducing the risk of recidivism. In addition, a related amendment to New York's Human Rights Law provides employers with some measure of protection against claims of negligent hiring based on workplace conduct allegedly committed by former inmates or other convicted persons.
Background
Article 23-A prohibits public agencies and private sector employers with 10 or more employees from refusing to hire or retain an employee because the applicant or employee was previously convicted of a crime or because the person was perceived to lack "good moral character." However, under Article 23-A the prior conviction may be a determinative factor in the employment decision where the conviction bears a direct relationship to the job at issue or the employment concerns an unreasonable risk to the property or to the health and welfare of the employee, applicant or the general public.
Article 23-A lists several factors that public agencies and private employers may consider when reviewing whether to employ or retain a convicted person.Those factors include:
- New York State's public policy encouraging the employment of persons previously convicted of one or more criminal offenses
- The specific duties and responsibilities necessarily related to the employment sought or held by the person
- The bearing, if any, the criminal offenses(s) will have on the person's fitness or ability to perform one or more such duties or responsibilities of the job
- The time elapsed since the date of the criminal offense
- The person's age at the time of the criminal offense
- The seriousness of the criminal offense
- Any information showing that the applicant or employee has been rehabilitated or exhibits good conduct
- The legitimate interests of the employer in protecting property, and the safety and welfare of specific individuals or the general public
N.Y. Correction Law § 753.
The Amendments
With these factors in mind, the amendments to the NY FRCA and Labor Law are designed to ensure that persons who have been convicted of crimes receive notice of their rights under Article 23-A.The NY FRCA was amended in two respects. First, the new law requires that whenever an investigative consumer report is requested in connection with an offer of employment, the notice required under the fair credit reporting act must include a copy of Article 23-A. N.Y.GBL § 380-c(b)(2). Second, the new law proscribes that whenever a reporting agency provides to an employer a report that contains a criminal conviction, the employer must provide the employee or applicant with a copy of Article 23-A. N.Y.GBL § 380-g(d). With respect to the New York labor law amendment, employers are required to post a copy of Article 23-A and any related regulations in a location that is accessible to all employees and is visually conspicuous. Labor Law § 201-f.
Although these amendments unquestionably place additional burdens on employers, the New York Legislature attempted to lessen the burdens by amending the New York Human Rights Law to make it more difficult for plaintiffs to successfully sue employers for negligent hiring or retaining a person convicted of a crime. The Human Rights Law amendment creates a rebuttable presumption aimed at excluding from evidence in a negligent hiring or retention case a convicted person's criminal background. To avail itself of the rebuttable presumption, the employer has to show that, after learning of the prior incarceration or conviction, it weighed the factors to be considered under Article 23-A and, on balance, determined that the person should be hired or retained. Simply stated, the Human Rights Law amendment (which went into effect immediately upon its passage in September 2008) favors keeping the criminal conviction out of a negligent hiring or retention case unless and until the plaintiff can overcome the presumption by demonstrating that the employer's reliance on Article 23-A's remedial purposes was erroneous and, given all the information known to the employer, the person should not have been hired or retained.
What Does This Mean For Employers?
In several respects, the amendments will change the manner in which employers manage their day-to-day human resources function. On a substantive level, human resource professionals and managers involved in the hiring process need to be trained on how to handle and weigh Article 23-A factors in making employment decisions in order to reduce the risk of negligent hiring or retention and conviction-related discrimination claims being asserted against the employer.
Procedurally, employers should immediately post a copy of Article 23-A on a bulletin board in the same area and manner as other employment-related postings (for example, minimum wage, occupational safety and health, and anti-discrimination notices). Employers also need to be mindful of when and under what circumstances they are required to provide copies of Article 23-A to employees and job seekers. Under the new law, in every instance where an investigative consumer report is requested in connection with an offer of employment, employers must provide a copy of Article 23-A. In addition, whenever an investigative reporting agency's report contains a criminal conviction, employers must also provide the subject of the report with a copy of Article 23-A. Employers should maintain electronic and hard copies of Article 23-A for immediate distribution so that current and prospective employees have a full understanding of their rights, and an opportunity to utilize the procedures set forth in the NY FRCA to correct any reported misinformation about criminal convictions.
Employers should review their existing applications, policies and procedures as well as employee handbooks to ensure that all anti-discrimination provisions include a reference to Article 23-A and its proscriptions against unlawful discrimination based on a person's criminal past.Alternatively, employers may want to consider electronically disseminating copies of Article 23-A to all employees via its intranet system.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
