Posting and Notice Requirements for New York’s Article A

 

new york correction law article 23-a

Article A requires employers to walk through this eight-step analysis in order to determine whether or not to hire an applicant with a prior conviction: (1) New York State’s public policy of encouraging the employment of persons with prior convictions. (2) The specific duties and responsibilities necessarily related to the employment sought. New York State Labor Law: Use of correctional records for employment. As of February 1, , employers must post a copy of Article A of the correction law relating to the employment of people with a criminal conviction. Workers must be able to see and access the posting. Download a copy of Article A: Discrimination. May 24,  · Even though New York Correction Law Article A (“Article A”) has long protected people with criminal records from employment discrimination, 4 the City determined that such discrimination still occurred when applicants were asked about their records before completing the hiring process because many employers were not weighing the.


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Note: This guidance has been updated to reflect amendments to N. It also prohibits discriminatory harassment and bias-based profiling by law enforcement, new york correction law article 23-a. While the FCA does not require employers to hire candidates whose convictions are directly related to a job or pose an unreasonable risk, it ensures that individuals with criminal histories are considered based on their qualifications before their conviction histories.

If the employer wishes to nevertheless withdraw its offer, it must first give the applicant a meaningful opportunity to respond before finalizing its decision. The FCA applies to both licensure and employment, although this Guidance focuses on employment. Any time the FCA or this Guidance requires notices and disclosures to be printed or in writing, they may also be communicated by email, if such method of communication is mutually agreed on in advance by the employer and the applicant.

For temporary help firms, a conditional offer is the offer to be placed in a pool of applicants from which the applicant may be sent to temporary positions. A previous conviction of a crime, either a felony or misdemeanor under New York law, 7 or a crime as defined by the law of another state.

A previous record of criminal convictions or non-convictions or a currently pending criminal case. A criminal action that has been adjourned in contemplation of dismissal pursuant to section Before a Conditional Offer The FCA prohibits the discovery and use of criminal history before a conditional offer of employment.

The following are examples of common hiring practices that are affected by the FCA. Solicitations, advertisements, and publications for employment cannot new york correction law article 23-a criminal history. The FCA now explicitly prohibits employers from expressing any limitation or specification based on criminal history in their job advertisements, 13 even though such advertisements are already illegal under the existing NYCHRL.

Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check, new york correction law article 23-a. Solicitations, advertisements, and publications may include language that welcomes people with criminal records, however. For example, solicitations, advertisements, or publications that include language such as "People with criminal histories are encouraged to apply," and "We value diverse experiences, new york correction law article 23-a, including prior contact with the criminal legal system" are permissible.

Stigmatizing language, like "ex-felon" and "former inmate," may not be used. Employers cannot inquire about criminal history during the interview process. The FCA allows an applicant to refuse to respond to any prohibited inquiry or statement. Such refusal or response to an illegal question shall not disqualify the applicant from the prospective employment, new york correction law article 23-a.

Inadvertent disclosures of criminal record information before a conditional offer of employment do not create employer liability. If a legitimate inquiry not made for that purpose leads an applicant to reveal criminal history, the employer should continue its hiring process.

Similarly, if an applicant asks an employer during the interview if she or he will be subject to a criminal background check, the employer may state that a criminal background check will be conducted only after a conditional offer of employment.

It must then move the conversation to a different topic. Employers who make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the FCA. However, employers must never inquire about or act on non-conviction information, however or ACDs that have not been revoked. To guard against soliciting or considering non-conviction information, employers may frame inquiries by using the following language after a conditional offer is made: Have you ever been convicted of a misdemeanor or felony?

If an employer hires an applicant after learning about her or his conviction history, the FCA does not require it to do anything more. An employer that wants to withdraw its conditional offer of employment, however, must first consider the Article A factors. If, after doing so, an employer still wants to withdraw its conditional offer, it must follow the Fair Chance Process. An employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction history.

If a direct relationship exists, an employer must evaluate the Article A factors to determine whether the concerns presented by the relationship have been mitigated. Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation regarding the relevant conviction.

The Fair Chance Process If, after evaluating the applicant according to Article A, an employer wishes to decline employment because a direct relationship or unreasonable risk exists, it must follow the Fair Chance Process: 1.

Share with the applicant a written copy of its Article A analysis; and 3, new york correction law article 23-a. Disclosing the Inquiry The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine new york correction law article 23-a an applicant has a criminal record, along with the date and time the employer accessed the information. The applicant must be able to see and challenge the same criminal history information relied on by the employer.

Employers who rely on criminal record information beyond what is contained in a criminal background report must also give that information to the applicant. Employers who search the Internet to obtain criminal histories must print out the pages they relied on, and such printouts must identify their source so that the applicant can verify them. Employers who check public records must provide copies of those records. Employers who rely on oral information must identify the interlocutor and provide a written summary of their conversation.

The summary must contain the same information the employer relied on in reaching its determination. Oral information includes anything the applicant revealed about her or his criminal record. Sharing the Fair Chance Notice The FCA directs the Commission to determine the manner in which employers inform applicants under Article A and provide a written copy new york correction law article 23-a that analysis to applicants.

The Notice requires employers to evaluate each Article A factor and choose which exception — direct relationship or unreasonable risk — the employer relies on. The Notice also contains space for the employer to articulate its conclusion. Finally, the Notice informs the applicant of her or his time to respond and requests evidence of rehabilitation and good conduct. The Notice provides examples of such information. Employers may identify specific examples of rehabilitation and good conduct that would be most relevant to the prospective position, but examples must be included.

This time period begins running when an applicant receives both the inquiry and Notice. Employers may therefore wish to confirm receipt, either by disclosing the information in person, electronically, or by registered mail. Such method of communication must be mutually agreed on in advance by the applicant and employer.

The process allows an applicant to respond either orally or in writing and provide additional information relevant to any of the Article A factors. If, after communicating with an applicant, the employer decides not to hire her or him, it must relay that decision to the applicant. Handling Errors in the Background Check An error on a background check might occur because, for example, it contains information that pertains to another person or is outdated.

If an applicant is able to demonstrate an error on the background report, the employer must conduct the Article A analysis based on the corrected conviction history information to ensure its decision is not tainted by the previous error. The FCA applies the same way to temporary help firms as it does to any other employer. To evaluate the job duties, a temporary help firm may only consider the basic skills necessary to be placed in its applicant pool.

Employers may assert the application of an exemption to defend against liability, and they have the burden of proving the exemption by a preponderance of the evidence. Other than the employers described in Subsections C and D of this Section, the Commission new york correction law article 23-a not assume that an entire employer or industry is exempt and will investigate how an exemption applies to a particular position or role.

Employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions The FCA does not apply to the actions of employers or their agents that are taken pursuant to any state, federal, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history.

A network of federal, state, and local laws creates employment barriers for people with criminal records. The Commission characterizes these barriers as either mandatory or discretionary. New york correction law article 23-a barriers require a licensing authority or employer to deny applicants with certain convictions enumerated in law.

Discretionary barriers allow, but do not require, a licensing authority or employer to deny applicants with criminal records, and may or may not enumerate disqualifying convictions.

For positions that do not require a criminal history check, however, such employers have to follow the FCA. The FCA applies when an employer hires new york correction law article 23-a who require licensure, or approval by a government agency, even if the license has mandatory barriers. In that case, an employer can only ask whether an applicant has the required license or can obtain one within an acceptable period of time. An applicant who has a license has already passed any criminal record barriers and been approved by a government agency.

An applicant who cannot, because of her or his conviction record, obtain a required license may have her or his conditional offer withdrawn or employment terminated for such legitimate nondiscriminatory reason. Employment decisions about such officers are exempt from the FCA, as are decisions about positions in law enforcement agencies exempted under New York New york correction law article 23-a Law Article A.

Once DCAS exempts a position, applicants may be asked about their conviction history at any time during the hiring process. Best Practices for Employers An employer claiming an exemption must be able to show that the position falls under one of the categories in Section VII of this Guidance. Employers availing themselves of exemptions to the FCA should inform applicants of the exemption they believe applies and keep a record of their use of such exemptions for a period of five 5 years from the date an exemption is used.

Keeping an exemption log will help the employer respond to Commission requests for information. Employers may be required to share their exemption log with the Commission. Prompt responses to Commission requests may help avoid a Commission-initiated investigation into employment practices. These penalties are in addition to the other remedies available to people who successfully resolve or prevail on claims under the NYCHRL, including, but not limited to, back and front pay, along with compensatory and punitive damages, new york correction law article 23-a.

Consistent with that definition, the Commission will presume that any reason known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer. No person can ask about non-convictions in connection with any application or evaluation for credit, new york correction law article 23-a. City Council, Committee Report on Int.

Brewer, Manhattan Borough President on Int. To comply with the FCA and the ADA, employers may condition an offer of employment on the results of a criminal background check and then, new york correction law article 23-a, after the criminal background check, a medical examination.

A felony is an offense for which a person may be incarcerated for more than one year. II, subpt. See Section XI of this Guidance. Law enforcement agencies hiring for police or peace officer positions may consider all non-convictions without exception. Employers whose advertisements exclude people with criminal convictions are not engaging in the individual analysis required by Article A. Under the Stop Credit Discrimination in Employment New york correction law article 23-a, employers, new york correction law article 23-a, labor organizations, and employment agencies cannot request or use the consumer credit history of an applicant or employee for the purpose of making any employment decisions, including hiring, compensation, and other terms and conditions of employment.

Van Lindt, 71 N. City of White Plains, N. An employer may not disfavor an applicant because she or new york correction law article 23-a does not possess a certificate. New york correction law article 23-a Law No. Menu Combating Discrimination Since Definitions The FCA applies to both licensure and employment, although this Guidance focuses on employment. New york correction law article 23-a Offer of Employment An offer of employment that can only be revoked based on: The results of a criminal background check; The results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act; 6 or Other information the employer could not have reasonably known before the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material to job performance.

Conviction History A previous conviction of a crime, either a felony or misdemeanor under New York law, 7 or a crime as defined by the law of another state. Criminal History A previous record of criminal convictions or non-convictions or a currently pending criminal case.

 

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new york correction law article 23-a

 

Article A requires employers to walk through this eight-step analysis in order to determine whether or not to hire an applicant with a prior conviction: (1) New York State’s public policy of encouraging the employment of persons with prior convictions. (2) The specific duties and responsibilities necessarily related to the employment sought. correction-law-articlea. Your download should start automatically in a few seconds. If doesn't start please click the link below. NOTICE UNDER NEW YORK CORRECTION LAW ARTICLE A LICENSURE AND EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES Overview: Effective February 1, , an amendment to Sections c and g of the.