New York Enforcing Laws to Put Convicts Back to Work

Nick Fishman

Last year, the state of New York amended their general business laws to force businesses to consider certain factors in their hiring decisions when their job applicants had criminal conviction records.  (New York State Correction Law Article 23-A, Section 753 “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”.) The law was aimed to help former convicts get jobs.  To comply, businesses that conduct background checks have to follow guidelines set forth in Article 23-A before taking adverse action.  The guidelines focus on the seriousness or severity of crimes, job relatedness of the criminal activity, how old the record was, if the person was a repeat offender, etc.

All has been pretty quiet since the law was enacted . . . until now.  Check out this editorial we found in today’s New York Times.  Clearly, they are prepared to begin enforcement.  If you are interested in learning more about Article 23-A, check out our podcast with Seyfarth Shaw’s, Pam Devata.

Denied A Chance for Honest Employment

Among the leading causes of recidivism are employment policies in the private and public sectors that discriminate against former offenders and too often drive them back to jail. New York State first addressed this problem more than 30 years ago with laws protecting the employment rights of people with criminal convictions. But two investigations by Attorney General Andrew Cuomo suggest that some companies are finding ways around these laws.

Employers in New York can, of course, review an applicant’s history. But they cannot deny an applicant a job on the basis of a conviction without considering whether the offense bears a relationship to the job being sought. New York law also forbids employers from shutting out qualified applicants because of convictions that are sealed or dismissed, minor infractions like speeding tickets or for arrests that do not lead to conviction.

In a recently completed investigation, the attorney general found that ChoicePoint, a nationally known employee screening company, was involved in creating an online job application system for employers that automatically disqualified thousands of applicants who disclosed criminal convictions. Moreover, investigators found that the company had recommended to employers that they disqualify applicants based on sealed or dismissed convictions and legal outcomes that are regarded as violations — not crimes ?? under New York law. One ChoicePoint client violated state law by withdrawing conditional job offers after information that should not have been taken into account turned up in background checks.

In a separate investigation, the attorney general found that RadioShack also had ignored the law by rejecting job applicants whose violations had been sealed, set aside or deemed to be minor. Both companies have agreed to pay financial penalties and to obey the law, without admitting or denying wrongdoing. But the cases raise the disturbing possibility that the practices they engaged in may be more widespread than supposed in a state that has been a national model in giving former prisoners a chance at honest work.

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Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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