Recent Amendments to New York State Law

Article 23-A of the Correction Law

Article 23-A generally describes New York's prohibition of discrimination against job applicants and employees with criminal convictions. Specifically, Article 23-A prohibits employers (both public employers and private employers that employ 10 or more people) from taking an adverse employment action against an applicant or employee based on a prior criminal conviction unless: 1) there is a “direct relationship” between one or more of the criminal convictions and the specific employment at issue; or 2) granting or continuing the employment at issue would involve an “unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” See N.Y. Correc. Law ' 752. Accordingly, an employer will have to demonstrate a specific reason (not a generalized fear or concern) in order to deny employment based on an applicant's prior criminal convictions.

In making this determination, employers must consider the following eight factors:

1. The state public policy encouraging the employment of persons previously convicted of one or more criminal offenses;
3. The specific duties and responsibilities necessarily related to the employment sought or held by the person;
4. The bearing, if any, the criminal offense(s) will have on the person's fitness or ability to perform one or more such duties or responsibilities;
5. The amount of time that elapsed since the criminal offense(s);
6. The age of the person at the time of the criminal offense(s);
7. The seriousness of the criminal offense(s);
8. Any information produced by the person, or on his/her behalf, in regard to rehabilitation and good conduct; and
9. The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public. See N.Y. Correc. Law. ' 753.

Employers are also directed to give consideration to those applicants or employees who are issued a certificate of relief from disabilities or a certificate of good conduct, as those certificates “create a presumption of rehabilitation” in regard to the criminal offense. Id.

New York Labor Law Section 201-F

New York Labor Law, as recently amended, now requires each employer to post a copy of Article 23-A and any related regulations, “in a place accessible to his or her employees and in a visually conspicuous manner.” See N.Y. Lab. Law
' 201-f. A copy of Article 23-A and the posting requirements is available at the New York Department of Labor Web site: http://www.labor.state.ny.us/agencyinfo/article23a.shtm. As with other posting requirements under New York Labor Law, failure to comply with ' 201-f may result in civil or criminal penalties. See N.Y. Lab. Law ” 213-215.

New York General Business Law Sections 380-c(b) and 380-g

The amendments to New York's General Business Law require employers to provide a copy of Article 23-A to an applicant or employee who is the subject of a criminal history record report in two circumstances.

First, employers who request an “investigative consumer report” (“ICR”) in connection with an offer of employment, must include a copy of Article 23-A in the notice of the procurement of the report that is given to the applicant. See N.Y. Gen. Bus. Law ' 380-c(b). An ICR is a detailed form of credit report that may involve personal interviews about lifestyle, character, and reputation and may include a criminal history report. See generally N.Y. Gen. Bus. Law ' 380-a(d). The notice must inform the prospective employee that an ICR may be sought and, upon request, the employer must advise the applicant whether an ICR was actually requested. See N.Y. Gen. Bus. Law ' 380-c(b). If an ICR was requested, the employer must provide, along with a copy of Article 23-A, the name and address of the third party from whom the ICR was requested, and advise the applicant that he or she has a right to inspect and copy the ICR by contacting that third party. Id.

Second, employers are now required to provide a job applicant or employee with a printed or electronic copy of Article 23-A anytime a background report it received from the background check provider contains any criminal conviction information. See N.Y. Gen. Bus. Law ' 380-g.

Comparison with Other States' Prohibitions

New York's prohibition of discrimination based on criminal convictions is not novel. Indeed, many states have similar provisions prohibiting employers from automatically denying employment to former criminal offenders. For instance, Kansas requires that if an employer decides to deny employment to an applicant on the basis of a criminal conviction, the employer must be able to demonstrate that the conviction “reasonably bears upon the ' applicant's or employee's trustworthiness, or the safety or well-being of the employer's employees or customers.” See Kan. Stat. Ann. ' 22-4710(f). Hawaii allows employers to consider only rationally-related criminal convictions that occurred within the past 10 years and only after the employer has extended a conditional offer of employment. See Haw. Rev. Stat. Ann. ' 378-2.5. In Wisconsin, employers may only refuse to employ an individual when the applicant's felony or misdemeanor offenses are “substantially related” to the position sought, or if the conviction is not bondable. See Wis. Stat. Ann. ' 111.335.

While the laws in Kansas, Hawaii and Wisconsin are intended to prohibit discrimination, they do not contain any posting or notice requirements. By contrast, the New Amendments in New York now obligate employers to comply with posting and notice requirements, and allow applicants to review an ICR if it contains a criminal offense history. Accordingly, the New York law imposes significantly greater administrative burdens on the employer.

Recommendations for Compliance

Although the New Amendments were just enacted, recent changes to New York's Human Rights Law may offer some guidance to New York employers.

Section 296(15) of New York's Executive Law (the “Human Rights Law”) makes it an unlawful discriminatory practice for an employer to deny employment to an individual with a criminal history in violation of Article 23-A. See N.Y. Exec. Law ' 296(15). The amendment to this section creates “a rebuttable presumption” in favor of excluding from evidence the fact of an employee's prior criminal conviction or incarceration, in cases in which negligent hiring, retaining, or supervision is alleged, if after learning about the applicant or employee's past criminal conviction history, the “employer has evaluated the factors set forth in [Article 23-A], and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.” Id.

The language of Section 296(15) highlights the benefits that will potentially accrue to employers who apply the procedures outlined in Article 23-A when making an employment decision related to a person with a criminal record. Employers that recruit in New York should therefore familiarize themselves with the language of Article 23-A, and maintain records of the analysis the employer utilized in making covered employment decisions.

In addition, employers should be mindful that Article 23-A does not prevent them from selecting a more qualified applicant over one who has committed a criminal offense. As long as the employer's decision was based on an objective factor unrelated to the criminal offense, such as professional credentials or relevant experience, the employer should not be found in violation of the requirements of Article 23-A or the related sections of the Human Rights Law.

With respect to the obligations imposed by the New Amendments, employers should plan immediately to implement the new posting and disclosure requirements. As a general matter, this will require that individuals involved in the recruitment process receive training regarding the New Amendments' requirements. Employers should be mindful that failing to comply with the requirements of the New Amendments and Article 23-A may result in civil or criminal liability. See, e.g., N.Y. Lab. Law ” 213-215; N.Y. Gen. Bus. Law ” 308-l, 380-m; and N.Y. Correc. Law ' 755.

Finally, employers are encouraged to: 1) train HR personnel regarding the new requirements; 2) assure that postings remain in place; 3) have copies of Article 23-A on hand to give to applicants; 4) ensure that all forms, policies, and procedures comply with Article 23-A; 5) understand the implications of receiving an ICR with criminal offense information; and 6) be prepared to respond in an appropriate manner to requests from employees and applicants for information under Article 23-A. As a fundamental part of this process, employers should assure that hiring managers understand that an applicant's prior criminal offenses do not automatically disqualify the applicant, but instead must be carefully weighed in accordance with the factors set forth in Article 23-A.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Amy S. Donovan is an associate in the firm's New York office

On Feb. 1, 2009, amendments to certain provisions of New York law went into effect that will have a profound effect on the manner in which New York employers review job applications, especially from applicants who have a record of criminal offenses. The obligations imposed by these amendments arise from the interaction of three separate sections of the New York consolidated laws: the Labor Law, the General Business Law, and the Correction Law. Employers will thus need to familiarize themselves with the requirements of each section in order to comply with the new amendments effectively.

The new amendments, codified at New York Labor Law ' 201-f and New York General Business Law ” 380-c(b)(2) and 380-g(d) (collectively the “New Amendments”), help to effectuate Article 23-A of New York's Correction Law (“Article 23-A”), which prohibits employment discrimination based on an individual's having committed one or more “criminal offenses.” The New Amendments require, among other things, that the employer give notice of Article 23-A to applicants and employees and provide a written explanation (if requested) to any applicant who is denied employment after disclosing a prior criminal offense.

As demonstrated below, New York's law goes well beyond the simple “no discrimination” requirements of other state laws.

Article 23-A of the Correction Law

Article 23-A generally describes New York's prohibition of discrimination against job applicants and employees with criminal convictions. Specifically, Article 23-A prohibits employers (both public employers and private employers that employ 10 or more people) from taking an adverse employment action against an applicant or employee based on a prior criminal conviction unless: 1) there is a “direct relationship” between one or more of the criminal convictions and the specific employment at issue; or 2) granting or continuing the employment at issue would involve an “unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” See N.Y. Correc. Law ' 752. Accordingly, an employer will have to demonstrate a specific reason (not a generalized fear or concern) in order to deny employment based on an applicant's prior criminal convictions.

In making this determination, employers must consider the following eight factors:

1. The state public policy encouraging the employment of persons previously convicted of one or more criminal offenses;
3. The specific duties and responsibilities necessarily related to the employment sought or held by the person;
4. The bearing, if any, the criminal offense(s) will have on the person's fitness or ability to perform one or more such duties or responsibilities;
5. The amount of time that elapsed since the criminal offense(s);
6. The age of the person at the time of the criminal offense(s);
7. The seriousness of the criminal offense(s);
8. Any information produced by the person, or on his/her behalf, in regard to rehabilitation and good conduct; and
9. The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public. See N.Y. Correc. Law. ' 753.

Employers are also directed to give consideration to those applicants or employees who are issued a certificate of relief from disabilities or a certificate of good conduct, as those certificates “create a presumption of rehabilitation” in regard to the criminal offense. Id.

New York Labor Law Section 201-F

New York Labor Law, as recently amended, now requires each employer to post a copy of Article 23-A and any related regulations, “in a place accessible to his or her employees and in a visually conspicuous manner.” See N.Y. Lab. Law
' 201-f. A copy of Article 23-A and the posting requirements is available at the New York Department of Labor Web site: http://www.labor.state.ny.us/agencyinfo/article23a.shtm. As with other posting requirements under New York Labor Law, failure to comply with ' 201-f may result in civil or criminal penalties. See N.Y. Lab. Law ” 213-215.

New York General Business Law Sections 380-c(b) and 380-g

The amendments to New York's General Business Law require employers to provide a copy of Article 23-A to an applicant or employee who is the subject of a criminal history record report in two circumstances.

First, employers who request an “investigative consumer report” (“ICR”) in connection with an offer of employment, must include a copy of Article 23-A in the notice of the procurement of the report that is given to the applicant. See N.Y. Gen. Bus. Law ' 380-c(b). An ICR is a detailed form of credit report that may involve personal interviews about lifestyle, character, and reputation and may include a criminal history report. See generally N.Y. Gen. Bus. Law ' 380-a(d). The notice must inform the prospective employee that an ICR may be sought and, upon request, the employer must advise the applicant whether an ICR was actually requested. See N.Y. Gen. Bus. Law ' 380-c(b). If an ICR was requested, the employer must provide, along with a copy of Article 23-A, the name and address of the third party from whom the ICR was requested, and advise the applicant that he or she has a right to inspect and copy the ICR by contacting that third party. Id.

Second, employers are now required to provide a job applicant or employee with a printed or electronic copy of Article 23-A anytime a background report it received from the background check provider contains any criminal conviction information. See N.Y. Gen. Bus. Law ' 380-g.

Comparison with Other States' Prohibitions

New York's prohibition of discrimination based on criminal convictions is not novel. Indeed, many states have similar provisions prohibiting employers from automatically denying employment to former criminal offenders. For instance, Kansas requires that if an employer decides to deny employment to an applicant on the basis of a criminal conviction, the employer must be able to demonstrate that the conviction “reasonably bears upon the ' applicant's or employee's trustworthiness, or the safety or well-being of the employer's employees or customers.” See Kan. Stat. Ann. ' 22-4710(f). Hawaii allows employers to consider only rationally-related criminal convictions that occurred within the past 10 years and only after the employer has extended a conditional offer of employment. See Haw. Rev. Stat. Ann. ' 378-2.5. In Wisconsin, employers may only refuse to employ an individual when the applicant's felony or misdemeanor offenses are “substantially related” to the position sought, or if the conviction is not bondable. See Wis. Stat. Ann. ' 111.335.

While the laws in Kansas, Hawaii and Wisconsin are intended to prohibit discrimination, they do not contain any posting or notice requirements. By contrast, the New Amendments in New York now obligate employers to comply with posting and notice requirements, and allow applicants to review an ICR if it contains a criminal offense history. Accordingly, the New York law imposes significantly greater administrative burdens on the employer.

Recommendations for Compliance

Although the New Amendments were just enacted, recent changes to New York's Human Rights Law may offer some guidance to New York employers.

Section 296(15) of New York's Executive Law (the “Human Rights Law”) makes it an unlawful discriminatory practice for an employer to deny employment to an individual with a criminal history in violation of Article 23-A. See N.Y. Exec. Law ' 296(15). The amendment to this section creates “a rebuttable presumption” in favor of excluding from evidence the fact of an employee's prior criminal conviction or incarceration, in cases in which negligent hiring, retaining, or supervision is alleged, if after learning about the applicant or employee's past criminal conviction history, the “employer has evaluated the factors set forth in [Article 23-A], and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.” Id.

The language of Section 296(15) highlights the benefits that will potentially accrue to employers who apply the procedures outlined in Article 23-A when making an employment decision related to a person with a criminal record. Employers that recruit in New York should therefore familiarize themselves with the language of Article 23-A, and maintain records of the analysis the employer utilized in making covered employment decisions.

In addition, employers should be mindful that Article 23-A does not prevent them from selecting a more qualified applicant over one who has committed a criminal offense. As long as the employer's decision was based on an objective factor unrelated to the criminal offense, such as professional credentials or relevant experience, the employer should not be found in violation of the requirements of Article 23-A or the related sections of the Human Rights Law.

With respect to the obligations imposed by the New Amendments, employers should plan immediately to implement the new posting and disclosure requirements. As a general matter, this will require that individuals involved in the recruitment process receive training regarding the New Amendments' requirements. Employers should be mindful that failing to comply with the requirements of the New Amendments and Article 23-A may result in civil or criminal liability. See, e.g., N.Y. Lab. Law ” 213-215; N.Y. Gen. Bus. Law ” 308-l, 380-m; and N.Y. Correc. Law ' 755.

Finally, employers are encouraged to: 1) train HR personnel regarding the new requirements; 2) assure that postings remain in place; 3) have copies of Article 23-A on hand to give to applicants; 4) ensure that all forms, policies, and procedures comply with Article 23-A; 5) understand the implications of receiving an ICR with criminal offense information; and 6) be prepared to respond in an appropriate manner to requests from employees and applicants for information under Article 23-A. As a fundamental part of this process, employers should assure that hiring managers understand that an applicant's prior criminal offenses do not automatically disqualify the applicant, but instead must be carefully weighed in accordance with the factors set forth in Article 23-A.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Amy S. Donovan is an associate in the firm's New York office