In significant new legislation, which Governor Paterson recently signed into law, several statutes have been revised to enhance employment protections for individuals with prior criminal convictions. The statutory revisions (which took effect February 1, 2009) amend Article 23-A of the New York Correction Law. This requires us as employers to engage in a multi-factor analysis before hiring or terminating employees solely as a result of a prior criminal conviction.

There are, however, two exceptions to the general prohibition. The first exception occurs where there is a "direct relationship" between the prior criminal offense and the specific employment or license held or sought. A "direct relationship" is specifically defined as one in which the nature of the criminal conduct for which the person was convicted has a direct bearing on his or her fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought. For example, an employer need not hire an individual to serve in a position with responsibility over financial matters if that individual was previously convicted of embezzlement.

The statue provides several factors that employers must consider in determining whether a "direct relationship" exists between an individual's prior criminal record and the position sought or held:

1. The specific duties of the job;
2. The bearing, if any, the criminal offense or offenses will have on the applicant's or employee's fitness to perform such duties;
3. The time elapsed since the conviction;
4. The age of the job applicant or employee at the time of the offense;
5. The seriousness of the offense or offenses;
6. The public policy of New York to encourage the employment of persons previously convicted of one or more criminal offenses; and

Any information in regard to the applicant's or employee's rehabilitation and good conduct; and the safety and welfare of specific individuals or the general public.

A second exception to the general rule prohibiting the use of an individual's criminal record to deny employment is triggered when doing so would create an "unreasonable risk" to persons or property. Unlike the "direct relationship" exception, which constitutes and "unreasonable risk" is not defined by the statue, but is instead determined on a case-by-case basis. Nevertheless, some courts have noted that the multiple factors used in determining a direct relationship are also useful in finding an "unreasonable risk."

Under the new legislation, employers must provide a copy of Article 23-A to individuals subject to background checks effective February 1, 2009.

In addition, and also effective February 1, 2009, employers must post a copy of Article 23-A of the Correction Law in a visually conspicuous manner in an accessible location in the workplace.

Finally, the New York Human Rights Law was amended, effective September 2008, to help protect New York employers from negligence claims alleging that an employee with a criminal conviction caused harm in the workplace. Under the amendment, if an employer evaluates an applicant's or employee's criminal history in accordance with Article 23-A and decides in good faith to hire or retain the individual, then the employer is afforded a rebuttable presumption that information regarding the individual's criminal background should be excluded from evidence in a negligent hiring lawsuit.

In light of these statutory amendments, New York employers must review and revise their policies and practices to ensure compliance with Article 23-A of the Correction Law. For example, they should provide all employees and job applicants with a copy of Article 23-A whenever they seek consent and disclosure forms authorizing a consumer report and should arrange for the proper postings. New York employers should also confer with counsel whenever they are considering refusal to hire or termination based on a prior criminal conviction.

Robyn L. Krueger
President & CEO

ARTICLE 23-A ACKNOWLEDGMENT

I acknowledge that by signing below, I have received Article 23-A.

I , authorize Lawley Service Inc and its Affiliated Branches to obtain my Motor Vehicle Record ("MVR") and release the information to my employer/prospective employer Community Missions of Niagara Frontier, Inc. I understand that this MVR may contain personal information in addition to any driving restriction (i.e., "must wear corrective lenses") in addition to any/all driver violations and/or accidents which may be on record through The State Department of Motor Vehicles.

In addition, should my application be accepted for employment and/or upon my becoming an employee for Community Missions of Niagara Frontier, Inc., or as a condition of being assigned driving duties on behalf of the aforementioned, I further authorize any/all additional request for my Motor Vehicle Report by submitted and reviewed as needed for the purpose of and the following permissible uses, pursuant to 18 USC §2721:

1. My continues evaluation and eligibility standards under the State and Federal regulatory compliance standards;
2. For use by any insurer or insurance support organization, or by a self insured entity, or its agents, employees, or contractors, in connection with claims investigation services, anti-fraud activities, rating or underwriting; and/or
3. For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver's license that is required under Chapter 313 of Title 49 (49 USC §31301, et seq.).

Employee/Applicant may obtain a copy of his/her MVR by contacting Lawley Agency, LLC at 361 Delaware Avenue, Buffalo,NY 14202 at 716-849-8618.