New York Expands Employment-Related Protections for Individuals With A Criminal Conviction Record

The New York Legislature recently signed three pieces of legislation aimed at enhancing employment opportunities for individuals with prior criminal convictions. The new laws relate to Article 23-A of New York’s Correction Law, which provides that employers are prohibited from discriminating against an applicant based on a prior criminal conviction unless (a) there is a “direct relationship” between one or more of the criminal convictions and the specific employment sought or held by the individual; or (b) granting or continuing employment would involve an “unreasonable risk” to property or to the safety or welfare of specific individuals or the general public. Article 23-A of the Corrections Law indentifies a list of factors that an employer must consider before making an employment decision on the basis of an individual’s criminal background. Some of these factors include: the relationship between the prior offense and the individual’s ability to perform specific duties of the job; the length of time elapsed since the offense; the individual’s age at the time of the offense; the seriousness of the offense; and information produced in regard to the individual’s rehabilitation and good conduct.

The first piece of legislation, effective September 2008, amends the New York Human Rights Law to protect New York employers from negligent hiring claims brought by third parties alleging an employee with a criminal conviction caused harm in the workplace. Under the amendment, if an employer has evaluated an applicant’s criminal history in accordance with the factors outlined in Article 23-A and decided in good faith to hire the individual, then the employer is afforded a rebuttable presumption that information regarding the individual’s criminal background should be excluded from evidence. The second piece of legislation, effective February 2009, requires all New York employers to post a copy of the Article and related regulations conspicuously in the workplace. The third piece of legislation, also effective February 2009, requires all New York employers to provide a copy of Article 23-A to (1) prospective employees subject to background checks and (2) any employee whose background check uncovers a prior criminal conviction, regardless of whether the employer takes adverse employment action against that individual.

Employers operating in New York should be mindful of these regulations and review and revise their employment policies and practices to ensure compliance with both the anti-discrimination and posting provisions of the new laws.