Fired after background check comes in

[mycarlb]

What is the name of your state? New York

My brother was recently hired by a company and he has a criminal history back 9 1/2 years ago - to which he answered honestly on the application. They asked, for purposes of a background check, if he had been convicted of a felony or misdemeanor within the last 5 years... to which he answered "NO".

After 4 days on the job, the human resource woman came and took him from his desk and said he was fired because his history did show felony convictions. Even though it was 9 1/2 years ago. I know that New York is an "at will" state, but is there anything he can do about this? Is it discrimination? If the company's policy was not to hire anyone with any criminal history at all, should they not have stated that on the application? He turned down 3 other offers because he was working for this company.

Just curious.... I feel so bad for him...he is one of the few who turned his life around, and still can't outrun the demon's of his past.

 

[Beth3]

Is your brother's job or the industry the company works in such that prior criminal convictions would pose a specific problem for the employer? For example, is this a financial services company where certain bonding and licensing is required?

 

[mycarlb]

No, he was working for a major outsourcing company... he was doing lead generation for ADP... No account info, nothing but cold calling to try and get leads for the sales team.

 

[Beth3]

Then it appears the employer's action was unlawful under recent ammendments to NY's Human Rights Law: http://www.labor.state.ny.us/ui/aso/a710.htm#71050

 

[Beth3]

Jeez - that link was for a huge amount of law revisions. Page down until you get to Special Bulletin A-710-50.

 

[mycarlb]

Wow... thank you so much!!! I am going to print that and give it to him!

You are wonderful Beth! God Bless!

 

[Beth3]

Wow. You're welcome.

Good luck to your brother.

 

[You Are Guilty]

Not so fast there, partner.

What crime(s) was bro's conviction for? There are a number of other "defenses" the company can use depending on what he was convicted for, irrespective of whether this particular job bears any relationship to his prior crime(s).


(edit)

Just to be clear, NY's Human Rights Law doesn't spell out the (limited) protections for convicts. Technically, they're not a "protected class" in the same sense as age, race, etc. since it's limited to employment situations.

In any event, the applicable statutes governing this issue are §750-754 of the NY Corrections Law. (§755 merely gives the state HRC authority to hear complaints).

Note §754 though. Bro is entitled to a written reason why he is being terminated. He'd definately need that if he went to the HRC to file a complaint, so make sure he knows about it before he confronts his employer.

 

[CO19]

What is the name of your state? New York

My brother was recently hired by a company and he has a criminal history back 9 1/2 years ago - to which he answered honestly on the application. They asked, for purposes of a background check, if he had been convicted of a felony or misdemeanor within the last 5 years... to which he answered "NO".

After 4 days on the job, the human resource woman came and took him from his desk and said he was fired because his history did show felony convictions. Even though it was 9 1/2 years ago. I know that New York is an "at will" state, but is there anything he can do about this? Is it discrimination? If the company's policy was not to hire anyone with any criminal history at all, should they not have stated that on the application? He turned down 3 other offers because he was working for this company.

Just curious.... I feel so bad for him...he is one of the few who turned his life around, and still can't outrun the demon's of his past.

MyCarlb, You/I spoke about your brother in a previous thread. Under EEOC guidlines, private employers MUST CONSIDER the age, nature, gravity, and releatedness of the offense when relying *solely* on crim records to discriminate against hiring a candidate.

In your brother's case, I would file a complaint with the EEOC, costs nothing, and let us know the results.... Here's their website: http://eeoc.gov/

 

[Beth3]

CO, I think you're taking the EEOC's guidlines out of context. This would only be an EEOC claim if the company's policy resulted in disparate impact. That doesn't seem to be the case here.

 

[mycarlb]

CO19... I will encourage him to do that... It's worth a shot I think. He is so discouraged right now, I feel so bad. Especially the way they escorted him from the building as if he had just committed another felony.

I thank you both for your kindness, and will be sure to let you know the outcome!

 

[CO19]

CO, I think you're taking the EEOC's guidlines out of context. This would only be an EEOC claim if the company's policy resulted in disparate impact. That doesn't seem to be the case here.

Actually Beth,

According to OP's post, brother was not hired exclusively b/c of a criminal record. Employers CANNOT exclude an applicant AUTOMATICALLY on the basis of a criminal record alone, per EEOC Notice N-915 (February 4, 1987), but rather must weigh in the factors I previously mentioned.

If you are aware of this Notice being updated/amended by the EEOC, please advise b/c I certainly want to be kept abreast of updates. Most in my industry rely on this Notice as means to consulting with employers about using crim records in hiring choices..... Thanks!

P.S. CA Employment Law Attorney Les Rosen just wrote a book called "Safe Hiring" and this Notice is in the book...

 

[mycarlb]

Not so fast there, partner.

What crime(s) was bro's conviction for? There are a number of other "defenses" the company can use depending on what he was convicted for, irrespective of whether this particular job bears any relationship to his prior crime(s).


(edit)

Just to be clear, NY's Human Rights Law doesn't spell out the (limited) protections for convicts. Technically, they're not a "protected class" in the same sense as age, race, etc. since it's limited to employment situations.

In any event, the applicable statutes governing this issue are §750-754 of the NY Corrections Law. (§755 merely gives the state HRC authority to hear complaints).

Note §754 though. Bro is entitled to a written reason why he is being terminated. He'd definately need that if he went to the HRC to file a complaint, so make sure he knows about it before he confronts his employer.

He had prescription forgery and grand larceny back in 1995... He also had grand larceny charges from 1991 - stole from our father for drugs... he was not a great person back then, but he has paid his price, reformed, and hasn't had an ounce of trouble since that time. I think he has proven himself to society... but evidently not in this case, or in his luck finding a career.

What angers me most is that if a convicted felon gets out of prison (no matter the charge) the government gives tax credits to the employers if they hire them... they haven't proven they are reformed or any other such thing, yet get special consideration... Once that year goes by (or 9 + in my brother's case) they are thrown to the wolves... no help, no assistance... It just bothers me

 

[Beth3]

CO, I've never heard of any federal law that makes it illegal to eliminate a candidate on the basis of his or her criminal record. That is a State law issue. Where the EEOC becomes involved is when an employer's policy results in a disparate impact on a protected group. In this case, African American males would very likely be disadvantaged by a "no convictions" hiring policy which is why such a policy would be very unwise. However in and of itself, a "no convictions" hiring policy is not illegal unless State law prohibits it.

There is no evidence to suggest that the OP's brother's company policy had a disparate impact on him. There may well be a violation of NYS law however.

 

[You Are Guilty]

He had prescription forgery and grand larceny back in 1995... He also had grand larceny charges from 1991 - stole from our father for drugs... he was not a great person back then, but he has paid his price, reformed, and hasn't had an ounce of trouble since that time. I think he has proven himself to society... but evidently not in this case, or in his luck finding a career.

Well, my crystal ball is telling me that the forgery conviction may be coming back to haunt him. The employer can theoretically claim that a convicted forger is not someone they trust signing people up via telephone for contracts. I doubt that would fly, but you never know.

Anyway, bro needs to get his written termination letter and head on over here to file a complaint (not the EEOC): http://www.dhr.state.ny.us/complaints.html

Good luck.