Lawyer Monthly Magazine - May 2019 Edition

www. lawyer-monthly .com documents that formed the basis for the analysis, such as, a rap sheet) and provide him/ her a chance to respond. In response, a candidate may wish to challenge the accuracy of a rap sheet or provide evidence of rehabilitation (such as a diploma, a community- service award, or a 12-step certificate). Such information may cause an employer to reassess its analysis. It is only after completing all steps in this process, i.e. extending a conditional offer, performing the eight-factor analysis, and allowing a candidate a chance to respond, that an employer may choose to rescind its offer. Are there any jobs where having a criminal conviction is per se unacceptable? The short answer is: YES. Depending on the nature of an individual’s conviction, s/he may be lawfully denied employment if the aforementioned eight- factor analysis warrants such rejection. For example, the Supreme Court of New York, Appellate Division held that a firefighter applicant was rightly denied employment on the basis of a prior drunk driving conviction, because the nature of his duties as a firefighter would “involve an unreasonable risk to property, and to the safety and welfare of the general public.” 9 1 https://www.brennancenter.org/blog/just-facts-many-americans-have-criminal-records-college-diplomas. 2 N.Y. Correct. Law § 752, N.Y. Exec. Law § 296(15). | 3 Stewart v. Civ. Serv. Com., 84 A.D.2d 491 (1st Dep’t 1982). 4 15 U.S.C. §§ 1681a(h), 1681b(a)(3)(B). | 5 15 U.S.C. § 1681b(b)(2)(A). | 6 15 U.S.C. § 1681b(b)(3)(A). 7 NYC Administrative Code §8-107(11-a). Unlike the other laws discussed, which apply to employers throughout New York State, the Fair Chance Act applies only to employers in New York City with four or more employees. 8 https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/. 9 Grafer v. N.Y. City Civ. Serv. Com., 181 A.D.2d 614 (1st Dep’t 1992). 10 Matter of Association of Surrogates, & Supreme Ct. Reporters v State of New York Unified Ct. Sys., 48 A.D.3d 228 (1st Dep’t 2008). 11 http://www.esrcheck.com/wordpress/2018/04/11/target-pay-3-7-million-settle-lawsuit-discriminatory-criminal-background- check-policy/. 84 Expert Insight MAY 2019 In another instance, the same court ruled that termination of a court reporter’s employment was proper because, her offense (identity theft and credit card fraud) was directly related to her ability to produce true, accurate, and complete records of court proceedings, as were her duties as an officer of the court. 10 Notably, both the New York State Corrections Law and the New York City Fair Chance Act expressly state that they do not apply to or protect those seeking entry into the police force. For understandable reasons, those seeking careers in law enforcement are held to a different standard than the general public when it comes to their criminal conviction history. As can be seen from the above, whether or not a criminal conviction will disqualify a candidate is an entirely individual assessment based on the specifics of the conviction and the nature of the duties s/he is to perform. What would you advise employers to do, in order to change their perception and embrace those who may have previously committed a crime? The single most important thing employers can do is to educate their staff, especially those on the front-lines of the hiring process. Legally compliant policies are useless in the face of management/staff that are ignorant of said policies and, as a result, engage in blatant acts of conviction discrimination. Such discrimination can lead to significant liability on the part of employers, especially in the form of class action disputes. For example, in 2013, Target agreed to a multimillion-dollar settlement, resolving class action claims filed on behalf of employees with criminal convictions. 11 Thus, employers would do well to make sure that their policies are up-to- date and their staff are well- trained. TO SUMMARIZE: Though New York’s anti- discrimination laws regarding criminal convictions are some of the strongest and most progressive in the country, those who have criminal records should know that their criminal history could lawfully have bearing on eligibility for employment under certain circumstances. Thus, it is critical that candidates and employers alike have full knowledge of their rights and responsibilities under New York’s dynamic legal landscape with respect to criminal convictions. LM ERICA RUTH SANDERS Erica Ruth Sanders is an associ- ate in the White Plains office of Phillips & Associates. She repre- sents employees in connection with issues involving workplace discrimination, wage theft, and executive compensation. Ms Sanders also has prior experi- ence working internationally in Paris and Dubai on matters involving complex commercial litigation and arbitration. She is an active member of the New York Chapter of the National Employment Lawyers Associa- tion and chairs the organiza- tion’s mentorship committee. She holds a dual degree in common and civil law from McGill University, as well as a Master’s degree in social psy- chology. CONTACT Erica Ruth Sanders Phillips & Associates www.newyorkdiscrimination- lawyer.com