Question about convictions and fairness in hiring, etc

[rlrl]

What is the name of your state? NY. This is something for Carl or the Senior Judge may know.

As i understand criminal background checks in NY, NY state DCJS fingerprint generated criminal records are only open to government agencies and those entities who can fingerprint or otherwise obtain rap sheet information on prospective job applicants(such as hospitals, banks, museums). Those who are not authorized by law to obtain rap sheet information are considered "the public".

For those entities who are considered "the public" and not authorized to obtain such information, they have to obtain criminal history information either through a consumer reporting agency or by doing a background check through the NY state court system (Office of Court Administration-OCA).

I see that there are several laws set in place that prevent discrimination based on a conviction. For example the EEOC says that an employer must consider the nature and gravity of an offense, how long ago it occured, and "if the employer has any doubt the applicant did not commit the offense", they do not have to hire the applicant. Other laws say that a conviction can only be relevant to the job being applied for such as a DWI conviction for a bus driver or a theft conviction for a bank teller.

My question: For these laws to be applied, does it matter the manner in which the background check was run? For example, does the job applicant have to be fingerprinted in order for these laws to be applied, or can the applicant have had the background check done through the courts or a CRA and still have these laws apply?

 

[CdwJava]

There are many types of positions where certain criminal convictions are - by statute - disqualifying for the employment or permit being sought. Any other lawfully obtained conviction information can generally be used along with other background data to determine suitability.

Since there is no RIGHT to employment or to obtain certain permits, there is often a broad latitude that an employer will be given in this area - particularly if there is a nexus. For instance, if a private retailer discovers an applicant with a prior conviction for fraud, he can generally exclude the person because the job being cought requires the applicant to be in a position o ftrust with outher people's money and banking information. A prior littering conviction may not be as easy to cite as a nexus for disqualifying.

Plus, if you are not hired for a job, the employer generally only has to say, "Thanks, but no thanks." They do not generally have to give you a reason.

As for the specific type of background conducted, it likely won't matter. So long as the information obtained was done so lawfully, and there is no reason to doubt that the information is fraudulent in some way, it can certainly be used as part of any hiring or licensing consideration as appropriate.

- Carl

 

[rlrl]

Disqualification period

I just came across a NY city agency that does background checks for housing. They access court records. They say a violation conviction creates a disqualification period of 2 years immediately following the end of the sentence served. if the applicant is convicted of any more offenses(up to 3) in a 10 year period it wil add an extra year of disqual.

My violation sentence was completed in 6/1997. I have no other records before or since then.

If this agency was checking my background today and saw the violation conviction that took place in 1996 but that i had no other records since (supposedly i would be in the clear without disqual) could they still call me out about it or would they be obliged to ignore it and not say anything to me about it since it's out of the disqual period?

 

[CdwJava]

Even if they cannot use it as an automatic disqualifier, I would guess that they are allowed to use certain of all convictions as part of the evaluation.

As with most hiring decisions, they aren't likely to tell you why you were not hired other than in the evaluation of your package you were believed to not be suited for the position.

However, employment law can vary widely from state to state, and this is not an area I have a great deal of knowledge in outside of CA. And in CA my expertise is limited largely to public safety employment laws and regulations.

- Carl

 

[You Are Guilty]

I just came across a NY city agency that does background checks for housing. They access court records. They say a violation conviction creates a disqualification period of 2 years immediately following the end of the sentence served. if the applicant is convicted of any more offenses(up to 3) in a 10 year period it wil add an extra year of disqual.

My violation sentence was completed in 6/1997. I have no other records before or since then.

If this agency was checking my background today and saw the violation conviction that took place in 1996 but that i had no other records since (supposedly i would be in the clear without disqual) could they still call me out about it or would they be obliged to ignore it and not say anything to me about it since it's out of the disqual period?

http://www.dhr.state.ny.us/hrlaw.html#296

It's a lot of reading, so be sure to check out #15 and 16.

 

[CdwJava]

http://www.dhr.state.ny.us/hrlaw.html#296

It's a lot of reading, so be sure to check out #15 and 16.

So ... what does section 23-A of the corrections law have to say?

Because I KNOW of quite a number of government agencies that CAN discriminate due to convictions, and many that MUST discriminate due to convictions and character ... law enforcement being one of them, and an earlier poster's wife's attempt to get licensed to be a care provider where it was codified that prior criminal history beyond 7 years COULD be considered.

I'm guessing this section 23-A gives certain agencies the right to discriminate based upon convictions ... either that, or child molesters could work in schools!

- Carl

 

[You Are Guilty]

It'll take to long to summarize, but you're not too far off base:

LICENSURE AND EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES

§ 752. Unfair discrimination against persons previously convicted of
one or more criminal offenses prohibited. No application for any license
or employment, to which the provisions of this article are applicable,
shall be denied by reason of the applicant's having been previously
convicted of one or more criminal offenses, or by reason of a finding of
lack of "good moral character" when such finding is based upon the fact
that the applicant has previously been convicted of one or more criminal
offenses, unless:
(1) there is a direct relationship between one or more of the previous
criminal offenses and the specific license or employment sought; or
(2) the issuance of the license or the granting of the employment
would involve an unreasonable risk to property or to the safety or
welfare of specific individuals or the general public.

§ 753. Factors to be considered concerning a previous criminal
conviction; presumption. 1. In making a determination pursuant to
section seven hundred fifty-two of this chapter, the public agency or
private employer shall consider the following factors:
(a) The public policy of this state, as expressed in this act, to
encourage the licensure and employment of persons previously convicted
of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to
the license or employment sought.
(c) The bearing, if any, the criminal offense or offenses for which
the person was previously convicted will have on his fitness or ability
to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal
offense or offenses.
(e) The age of the person at the time of occurrence of the criminal
offense or offenses.
(f) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his behalf,
in regard to his rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer
in protecting property, and the safety and welfare of specific
individuals or the general public.
2. In making a determination pursuant to section seven hundred
fifty-two of this chapter, the public agency or private employer shall
also give consideration to a certificate of relief from disabilities or
a certificate of good conduct issued to the applicant, which certificate
shall create a presumption of rehabilitation in regard to the offense or
offenses specified therein.

 

[rlrl]

I know that ...

NY state government agencies and licensing agencies that follow these laws check NY state DCJS files for any criminal history. They access DCJS files because they are authorized by law to do it. The public cannot check DCJS files because they are restricted only to govt agencies

Generally violations such disorderly conduct and harrassment and sealed from DCJS records so they don't appear on rap sheets when criminal histories are conducted. This may be why the above laws refer only to "criminal offenses" which are misdemeanors and felonies in NY state. In fact, I believe that many NY state job application questions only ask about convictions for crimes.

My question: There is nothing stopping such agencies from checking court files which are open to the public. If they did check court files, they would see the violation conviction which normally is sealed on the DCJS check. Since the jargon in the above laws refers only to criminal offenses, can they consider a violation (which is referred to as an "offense") in making an adverse hiring decision?

In NY a violation conviction is legally not considered a 'criminal" conviction

 

[nyhov11]

rlrl...

I could tell you from my experience so far, a bank, a hospital, and delivery truck driver position (not so professional, I agree) all have asked if I had been convicted of a 'crime' on the application. In fact they did not even take my prints or run background, although I thought the hospital was going to take prints, since they definitely can. Unless it is a gov. position, law enforcement or political position, I think you should be good.