New York State gives convicts a leg up in tough job market
What does an employer need to do?
- Provide a workable copy of Article 23-A of the New York Correction law which provides the rights of non-discrimination for those with criminal records to your customers.
- Provide new language in your Consent and Release forms referencing that a copy of Article 23-A is being provided to the consumer. It is recommended that a single Consent and Release form be used for New York employment and every consumer who is the subject of the report be provided a copy of the anti-discrimination law found in Article 23-A.
- Know, understand, and adhere to Article 23-A!
This is the article that all of the above hinges on. The crux of the law is that the conviction must be job related for an employer to deny the applicant a job based upon the conviction. From there, the law mirrors traditional EEOC guidelines which outlines those things that must be considered when determining if a conviction is job related (ie. elapsed time since the date of conviction; age at conviction; seriousness (level) of the crime; and, any rehabilitation that may have occurred).
New York has also provided a safe harbor for employers. Since the state is pushing for employment of those with a criminal record, it has now provided a defense to a negligent hiring/retention claim if the employer considers the elements contained in §753 of Article 23-A.
According to Bill Dolphin, Asset Control's V.P. and Compliance Officer, this is nothing new to New York state employers. New York has had similar anti discrimination laws on the books for years. "What this represents is a renewal of interest on the part of the State to promote a dubious right bestowed upon a small element of society ahead of the right of an employer to protect their business, employees, and customers," says Dolphin. "Regardless, we have to believe that the State will be serious about enforcing these new laws. Employers have to be mindful of the new law and and thoughtful regarding the criteria they use in evaluating job relatedness. The State is not going to assist employers by providing any guidance up front. The guidelines will arise from the outcomes of enforcement actions and future litigation."
To help employers assess the job relatedness of an applicant's conviction record, Asset Control is providing a downloadable form for clients to use. This form, as well as an updated Disclosure and Release form can be accessed from within the "downloadable forms" part of the secure, clients only, portion of the Web site. As always, Asset Control advises clients to seek the advise of their internal counsel on all legal matters, particularly when it comes to the interpretation of new laws and regulations.