NEW YORK PROVIDES EMPLOYERS AND EMPLOYEES WITH  ADDITIONAL SAFEGUARDS IN HIRING AND RETAINING EMPLOYEES WITH CRIMINAL CONVICTIONS

September 26, 2008
By Michael J. Mauro, Esq.
Milman Labuda Law Group, PLLC

New York State has amended several laws bearing upon the hiring of applicants (and retention of employees) with criminal convictions.

To begin with, an employer cannot refuse to hire an applicant on the basis of a criminal conviction alone. The Correction Law mandates that an employer take into account the following factors in determining whether an applicant with a criminal conviction should be hired:

• The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
• The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
• The time which has elapsed since the occurrence of the criminal offense or offenses.
• The age of the person at the time of occurrence of the criminal offense or offenses.
• The seriousness of the offense or offenses.
• Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
• The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

NY CLS Correc § 753.

A problem facing employers in hiring an applicant with a criminal conviction is the susceptibility to potential lawsuits for negligent hiring, negligent retention or negligent supervision if the applicant-turned-employee commits some sort of criminal act or civil violation (i.e. harassment) in the workplace. Both the Correction Law and the Human Rights Law did not provide any safe harbor provision for an employer who hires a convict who later commits some harmful act (criminally or civilly). In other words, while the employer could get hit with a discrimination charge for refusing to hire a convict on the basis of the criminal record alone, that same employer opens itself up to negligence claims if the employee commits some harm. This is the proverbial rock and a hard place for an employer.

The New York State Legislature and Gov. Paterson have finally addressed this dilemma for employers. They amended § 296 of the Human Rights Law effective immediately. There will be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of an employee in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager if the employer can show that it undertook a good faith effort, reasonable determination that the factors outlined in the Correction Law favored a decision to hire the employee (or retain the employee, if it learned of the conviction after hire).

What does this all mean? An employer must review the factors listed in the Correction Law when determining whether to hire an applicant who has a criminal conviction or when determining whether to retain an employee if the employer has learned of the conviction post-hiring. If the employee later commits an unlawful act (criminally or civilly) that gives rise to a negligence claim against the employer, the employer will be in a strong position to prevent the conviction from being used as evidence against it to prove the negligence claims.

A final note: New York’s General Business law was also amended imposing additional obligations on an employer who requests a criminal background check to be performed by a third party on applicants for hire.

An employer must provide individuals subject to criminal background checks with a copy of Article 23-A of the Corrections Law. The new law also requires employers to post a copy of Article 23-A of the Corrections Law and related regulations conspicuously in the workplace.

These amendments take effect on February 1, 2009.