New York State gives convicts a leg up in tough job market

The State of New York has amended its laws hoping to boost convicts chances of getting work in today's tough job market. New York's ex-convict's have a high unemployment rate of approximately 60% after one year from release. To help those people find employment, New York is working to make it very clear to the users of criminal reports that they cannot discriminate against convicts simply because they have a criminal record.

On February 1, 2009, two changes to the New York consumer reporting laws will become effective: 1) §380-c, General Business Law: If a user requests an investigative consumer report for employment purposes, the user must, in the notice to the consumer, state that a report will be sought and indicate that it is providing a copy of Article 23-A of the New York Correction Law to the consumer which sets forth the anti-discrimination provision relating to those with criminal records; and 2) §380-g, General Business Law: This amendment added sub-section (d) which provides that if a consumer report contains a criminal record then the user shall provide a copy of Article 23-A of the Correction Law to the consumer. These two laws seem to be contradictory and New York has not taken steps to clarify the situation. Therefore, Asset Control advises clients that do NY Statewide searches to follow 380-c and to include a copy of Article 12-A with the initial release.

While the law does not specifically state which hiring situations are controlled by these new laws, past research suggests that New York discrimination laws will apply to those working in the State of New York. Thus it will apply to a New York company employing an applicant to work in New York. It will not apply to a New York company employing a person in New Jersey unless they hire that person in New York. It will apply to a New Jersey employer hiring someone in New York.

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!

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.