LEGAL UPDATE
New York Adds Employment-Related Protection for Individuals with Criminal Convictions
New York Governor David A. Paterson recently signed into law three pieces of legislation aimed at improving employment opportunities for individuals with prior criminal convictions. While New York law already provides protections for individuals with criminal records, the legislature felt that employers were not sufficiently aware of these laws and were imposing blanket policies against hiring anyone with a criminal record.
The new laws, which relate to Article 23-A of New York's Correction Law, serve to remind and educate New York employers and employees about employers' obligations. Through the new laws, employer protection against negligent hiring claims also is enhanced.
Under Article 23-A, employers must consider the following eight factors:
- The state 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 offense(s) will have on the person's fitness or ability to perform one or more such duties or responsibilities;
- The amount of time that elapsed since the criminal offense(s);
- The age of the person at the time of the criminal offense(s);
- The seriousness of the criminal offense(s);
- Any information produced by the person, or on his/her behalf, in regard to rehabilitation and good conduct; and
- The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
Effective February 2009, the first law requires employers, as part of their background check process, to provide a copy of Article 23-A to individuals subject to background checks.
The second law, also effective February 2009, requires all New York employers to post a copy of Article 23-A in a visually conspicuous place in the workplace.
The third law, effective since September 2008, protects New York employers from negligent hiring claims. Under this amendment to the New York State Human Rights Law, if an employer has evaluated an applicant's criminal history in accordance with Article 23-A and decided in good faith to hire the individual, then the employer is afforded a rebuttal presumption that information regarding the individual's criminal background should be excluded from evidence in a negligent hiring case.
(Source: www.labor.state.ny.us)
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