New York Governor David Paterson recently signed a trio of laws concerning employment of persons with criminal histories:
First, effective February 1, 2009, all New York employers must post a copy of New York Corrections Law Article 23-A, and any regulations promulgated in accordance with that Article, in a place accessible to the employees and in a visually conspicuous manner. Article 23-A concerns the employment of persons previously convicted of crimes.
Second, also effective February 1, 2009, New York employers that procure investigative consumer reports on job applicants or employees must provide the applicants/ employees with a copy of Article 23- A. Likewise, if any consumer reporting agency provides any consumer report containing criminal conviction information, the employer that requested the report must also provide the applicant/ employee with a copy of Article 23-A.
Finally, Governor Patterson also signed legislation amending the State’s Human Rights Law to provide additional protections from lawsuits for employers that hire applicants with criminal records. Specifically, any employer sued for the negligent hiring, retaining or supervising of an employee with a criminal record, can now enjoy a rebuttable presumption in court in favor of excluding from evidence the fact of the employee’s prior criminal history.
The employer can utilize this rebuttable presumption if, after learning about the employee or applicant’s criminal history, the employer decided to hire (or continue to employ) the employee upon conducting a good faith evaluation of whether or not (1) there was a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; and (2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Based upon this new legislation, New York employers should consider utilizing a detailed checklist as part of the hiring process of any candidate with a criminal record. This checklist would be useful to establish the rebuttable presumption for any ex-convict candidates hired, and to defend discrimination claims by any exconvict candidates rightly rejected.