Question:
Hi Ken,
Re: Hiring practices and legal boundaries.
Can I do a State Criminal Search to determine whether to hire an individual for employment?
If no, then where do I search to find that I will not be potentially hiring a "career burglar"?
If yes, what if I have to agree beforehand with the search company when it states that I must agree to not use the State Criminal Search to:
1. Determine: whether to hire an individual for employment...
What should I be looking for, and where, to protect myself and my clients?
Should my searches, if any, be for all employees with potential access to sensitive information such as codes and/or passwords?
Thanks in advance.
Andy@Goodstrong
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Dear Andy:
First let me tell everyone that you are in New York. State laws may differ.
New York Labor Law § 201-a. Fingerprinting of employees prohibited:
Except as otherwise provided by law, no person, as a condition of securing employment or of continuing employment, shall be required to be fingerprinted.
This provision shall not apply to employees of the state or any municipal subdivisions or departments thereof, or to the employees of legally incorporated hospitals, supported in whole or in part by public funds or private endowment, or to the employees of medical colleges affiliated with such hospitals or to employees of private proprietary hospitals.
County employees
A county may obtain criminal history records from the Division of Criminal Justice Services for prospective employees of a county-owned nursing home pursuant to agreement with the Division and local law, and if authorized by contract and local law, a county may either obtain the criminal history
records of individuals who seek to provide personal care services through the county Department of Health or require agencies that contract with the county to provide personal care services to obtain the criminal history records of prospective employees, but a county may not require privately-owned nursing homes located in the county to fingerprint and/or obtain criminal background checks of prospective employees.
Fingerprinting of--
Employees of private detective or investigator,
Employees of public galleries, museums, hospitals, medical colleges affiliated with hospitals and private proprietary hospitals,
Farm labor contractors, .
Inspectors and investigators of the department of agriculture and markets,
Officers and employees of a member or member organization of a national securities exchange or association, registered broker-dealer, or affiliated clearing corporation,
Participants and employees at--
Harness race meetings,
Thoroughbred race meetings, Personnel employed by the city school district of the city of New York,
Persons engaged in preparing or detonating explosives,
Persons required to obtain licenses with respect to boxing and wrestling,
Private investigators and employees of watch, guard and patrol agencies,
Undersheriffs and deputy sheriffs.
NY Correction Law § 752. Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited
No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless:
(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or
(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
MemoDate: April 8, 2003
To: Ken
From: Marvin Romero
RE: Criminal Background Checks--------------------------------------------------------
--------------------------------------The following provides information regarding Andy’s inquiry as to whether he can do use a state criminal search to determine whether to hire an individual for employment. New York State has a public policy of rehabilitating those convicted of crimes and therefore has enacted statutes to protect persons previously incarcerated. While there is nothing which prevents an employer from obtaining a person’s criminal history record, as a result of the state’s public policy, statutes such as Article 23-A (Correction Law §§ 750-753) and Executive Law 296(15) and (16) have been enacted to prevent unfair discrimination in the licensure and
employment of individuals who had been convicted of crimes. Article 23-A is not intended to require the hiring of former offenders but rather to limit the ability of employers and state licensing agencies to use the criminal records of applicants.Article 23-A is a general rule that bars employers and public
agencies from denying employment or a license, solely based on one's ex-offender status. However, the statute recognizes two exceptions. The first occurs where there is a "direct relationship" between the prior criminal offense and the specific employment or license sought. A direct relationship is defined as one in which the "nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought." (§750[3]).In determining whether a "direct
relationship" exists between a particular applicant's prior criminal record and the employment position sought, the employer must consider the eight factors enumerated in Correction Law §753: (1) the public policy of New York to encourage the employment of persons previously convicted of one or more criminal offenses; (2) the specific duties of the job; (3) the bearing, if any, the criminal offense or offenses will have on the applicant's fitness to perform such duties; (4) the time elapsed since the conviction; (5) the age of the job applicant at the time of the offense; (6) the seriousness of the
offense or offenses; (7) any info in regard to the applicant's rehabilitation and good conduct; and (8) the legitimate interest of the public agency or private employer in protectingproperty, and the safety and welfare of specific individuals or the general public. Under this provision, the courts have
upheld the denial of employment to individuals whose prior convictions had a direct relationship with the position sought. In Barnacosa v. Lindt, 129 A.D.2d 518, 514 N.Y.S.2d 370 (1st Dept. 1987) the court held that the State Racing and Wagering Board did not violate Correction Law § 750 in considering convictions of soliciting false testimony by applicant for harness owner- trainer-driver license where convictions were for serious crimes directly impugning integrity of racing. Here, in the area of alarm systems, applicants can be screened in order to determine whether any prior convictions have a "direct relationship" to the position being sought. Clearly a "career burglar" could be denied employment for their past convictions due the nature of the services being provided. It is inconceivable that a court would hold that an alarm company erred in denying employment to a former burglar considering that employment with an alarm company would entail providing access to the homes of individuals and access to their passwords or codes.In addition, Article 23-A also provides a second exception to the general rule prohibiting the use of an ex-offender's criminal record to deny employment.
Employers may reject an applicant if his or her employment would create an "unreasonable risk" to persons or property. Unlike the "direct relation" exception, what constitutes an "unreasonable risk" is not defined, but instead must be determined on a case-by-case basis. See Barconosa v. Lindt, 129 A.D.2d 518. However, some courts have noted that the eight factors used in determining a direct relation are also useful in finding an "unreasonable risk." Id.In Arrocha v. The Board of Education of New York, 93 N.Y.2d 361, 690 N.Y.S2d 503 (1999), the court upheld the denial of a person’s application to be teacher based upon his prior conviction for drug distribution. The court held that the applicant's prior conviction presented an unreasonable risk to the persons whom the applicant would be in contact with during his employment.
In the situation presented here, provided that the prior conviction can be shown to create an "unreasonable risk" to the customers, a company would not be in violation of Article 23-A or Executive Law 296.It should be noted however, that pursuant to Corrective Law §754, at the request of any person previously convicted of a criminal offense who has been denied employment, an employer must provide, within 30 days of a request, a written statement setting forth the reasons for such denial. As for the search company's statement that one agrees not to use the State Criminal Search to determine whether to hire an individual for employment, this may be a boiler plate statement included in the event that a employer uses an applicant's criminal records as the sole reason for denying employment. This statement may not be taking into consideration other factors that employers take into consideration in making their hiring decisions nor situations in which an employer may have the right to the rely on the criminal records to deny employment as provided under the Article 23-A exceptions. In conclusion, although the State of New York prohibits the denial of employment of an applicant due to their previous convictions, the State does recognize two exceptions: (1) conviction has a direct relationship with the employment sought or (2) where the granting of employment would involve an unreasonable risk to the safety of individuals or the general public
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Ken:
you and I have been up this road several times. Under articles 6d,The Security and fire alarm license law fingerprinting IS a condition of employment. Under NY State rules a convicted felon can not work for a 6D License holder. In addition, If an existing employee becomes a convicted felon, his/her termination is mandatory. ( that's usually not an issue as I'm sure prison follows conviction.)
Under Title 19 NYCRR, Security and Fire Alarm Systems PArt 195 , Licensing Regulations for the business of installing, servicing or maintaining security or fire alarm systems, Section 195.8(b) states that any employee who ASSISTS in the installation, maintenance or service of security or fire alarm systems must be fingerprinted, and the employer must submit the fingerprint cards to the Division of Licensing Services within 24 hours of such employment.
I and the members of the advisory board were instrumental in getting the Dept of State to define any employee that ASSISTS in the installation, maintenance or service to include administrative employees that have access to system codes, downloads, or any information that could compromise the security system.
For years I have turned away convicted felon applicants and have been challenged by the Dept of Labor on one occasion and they withdrew. We also Drug test and polygraph all new applicants (permissable under a Federal Law that pertains to the security industry) even though it's not
permitted in Suffolk county, It's still permitted..
I would be happy to discuss with anyone the rules regarding background checks for our industry in the State of New York.
RON PETRARCA
631-271-4000