The New York Legislature recently amended the State's General Business and Labor Laws to enhance employment related protections for individuals with prior criminal convictions.  Bolstering New York's well established public policy prohibiting the discrimination of persons previously convicted of one or more criminal offenses, the new amendments require employers to distribute and post notices to job applicants and employees regarding their rights with respect to, and an employer's limitation on the use of, criminal conviction information.  The notice and posting requirements went into effect on February 1, 2009.

Background on Article 23-A

Article 23-A of the New York Correction Law precludes employers and licensing authorities from taking adverse action against an applicant "by reason of the individual's having been previously convicted of one or more criminal offenses" or a finding of a lack of "good moral character" due to a prior conviction, unless there is a direct relationship between the criminal offenses and the employment or license sought, or if the employment or license presents an unreasonable risk to property or to the safety or welfare of individuals or the general public.  N.Y. Correction Law §752.

The law requires the public agency or private employer to consider the following factors concerning a previous criminal conviction:

• The state's public policy of encouraging the licensure and employment of persons previously convicted of one or more criminal offenses;
• The specific duties and responsibilities related to the license or employment sought or held by the applicant;
• The bearing the conviction will have on the applicant's fitness or ability to perform one or more such duties or responsibilities;
• The time that has elapsed since the occurrence of the criminal offense;
• The age of the applicant at the time of occurrence of the criminal offense;
• The seriousness of the offense;
• Any information produced by the applicant, or produced on his/her behalf, in regard to his/her rehabilitation and good conduct;
• The legitimate interest of protecting property, and the safety and welfare of individuals the general public.

In making the determination, the employer and public agency shall also consider any certificates of relief from disabilities or certificates of good conduct issued to the applicant, which creates a presumption of rehabilitation regarding the offense or offenses.

Notice Requirements

As of February 1, 2009, amendments to the General Business and Labor Laws now require an employer to:

• Provide a copy of Article 23-A to all applicants prior to conducting criminal background checks or requesting investigative consumer reports (See N.Y. Business Law §380-c);
• Provide the applicant with an additional copy of Article 23-A if the consumer report contains criminal conviction information (See N.Y. Business Law § 380-g); and
• Post a copy of Article 23-A (and any regulations to be promulgated thereto) in a place accessible to employees and in a visually conspicuous manner (See N.Y. Labor Law § 201-f).

Recommendations

Employers should be aware of these new amendments and ensure compliance with the posting and notice requirements.  Employers should post Article 23-A in the same location(s) that they post other employment related notices, whether in hard copy or electronically.  A copy of Article 23-A may be found on the New York State Department of Labor website (http://www.labor.state.ny.us/).  In addition, employers should review company forms, handbooks, policies and procedures for compliance with these amendments and confirm that Article 23-A is included among the other legally mandated disclosures and authorizations regarding background checks.  Finally, employers should train individuals involved in hiring and retention decisions to properly consider the Article 23-A factors in order to mitigate the risk of discrimination claims.  The New York Human Rights Law was recently amended to create a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in negligent hiring or retention cases, if after learning about an applicant or employee's past criminal conviction history, such employer made a reasonable, good faith employment determination in accordance with the factors set forth in Article 23-A.  The employer that has carefully considered the factors in Article 23-A will benefit from this additional protection.

If you wish to discuss your company's obligations or if have other questions about these new amendments, please contact the Nukk-Freeman & Cerra attorney with whom you normally work.