Lawyer Monthly Magazine - May 2019 Edition

www. lawyer-monthly .com 83 Expert Insight MAY 2019 in writing before ordering such a background check, 5 and must notify the individual in writing of its intent to take any “adverse action” based on any part of the report prior to doing so. 6 2. THE NEW YORK STATE CORRECTIONS LAW The New York State Corrections Law allows an employer to refuse or rescind an offer of employment, only where the conviction either has a direct relationship to the nature of employment, or poses an unreasonable safety risk. As you might imagine, the analysis that must be performed by employers to determine if either of these two criteria are met is quite fact-specific. However, there are eight factors New York employers must consider before refusing employment on the basis of a conviction. They are: 1. Public policy: New York’s public policy encouraging the employment of persons previously convicted of one or more criminal offenses. 2. Duties: The specific duties and responsibilities necessarily related to the employment sought or held by the person. 3. Relationship between duties An employer can reject a candidate who lies about a conviction, even if the said conviction is not related to the nature of the job. and conviction: 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 of the job’s duties or responsibilities. 4. Timing: The time elapsed since the criminal offense or offenses. 5. Age: The age of the person at the time of the criminal offense or offenses. 6. Severity: The seriousness of the offense or offenses. 7. Rehabilitation: Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct. 8. Safety: The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public. Should an employer decide to rescind or withhold an offer based on the above analysis, a candidate can request a written statement explaining the basis for the decision. The employer must provide such statement within 30 days of receiving the request. 3. THE NEW YORK STATE HUMAN RIGHTS LAW The New York State Human Rights Law (NYSHRL) supplements the Corrections Law by making it unlawful for an employer to ask candidates about sealed convictions, criminal accusations, or even arrests, if said events did not lead to an actual conviction. As an exception, however, an employer can ask about charges if they are currently pending during the hiring process. 4. THE NEW YORK CITY FAIR CHANCE ACT The New York City Fair Chance Act 7 is one of the most progressive pieces of anti-conviction discrimination legislation in the country, and is part of the “Ban the Box” movement 8 sweeping across cities and states throughout the country. Specifically, this law prohibits employers from asking candidates about prior convictions until after a conditional offer of employment has been made. Only after extending a conditional offer can an employer inquire into criminal conviction history and (possibly) revoke said offer once the eight-factor test, proscribed by the Corrections Law, is performed. The purpose of this legislation is to prevent employers from surreptitiously declining candidates based on their criminal history while hiding behind false legitimate reasons, such as the candidate not be “qualified.” What’s more, under the Fair Chance Act, if after offering employment and conducting a background check, an employer becomes concerned about a candidate’s conviction status, it must first provide the applicant with its written eight- factor analysis (including any