Question about new information about new employee

[isis297]

The HR specialist has more info than we do. You have been asked several times with no answer but I'm going to try again.

What is the legal situation?

Was this a question that was answered falsely on an application?

I was trying to be cautious as to what information I put of the man on here. He is a sex offender who spent time in federal prison. Obviously we have clients who have children. Sometimes we don't. But it is his job to manage the job sites in the field.

 

[isis297]

OP is steadfastly refusing to answer this question - even though the answer may be directly related to the problems her boss is having. She has advised several of us that she has sent us PMs elaborating on the legal issue...but in fact she hasn't actually done that.

Personally, I'm done with all this dental work.

I only private messaged you. You might want to look at your inbox. The message is showing up in my folder. I ended up putting the gist of it here after all, but I'm not a liar. I did PM you. And again, I'm trying to be cautious how I go about this. I'm not looking for trouble for the company I work for.

 

[isis297]

The HR specialist has more info than we do. You have been asked several times with no answer but I'm going to try again.

What is the legal situation?

Was this a question that was answered falsely on an application?

We were advised we were not allowed to ask if applicants were felons so the question wasn't asked during the interview.

 

[eerelations]

I only private messaged you. You might want to look at your inbox. The message is showing up in my folder. I ended up putting the gist of it here after all, but I'm not a liar. I did PM you. And again, I'm trying to be cautious how I go about this. I'm not looking for trouble for the company I work for.

There are no PMs from you in my inbox. None whatsoever. Nada.

 

[isis297]

There are no PMs from you in my inbox. None whatsoever. Nada.

OMG I'm sorry. It was Just Blue I had messaged. My apologies. *sigh*

Either way, I put the short of it above. Do you see it? I'm just trying to be cautious. I know I'm not using names and whatnot, but I don't want to start any trouble for the man or the company. It's just the guy was hired to do a certain job and now there will be times that he can't do his job. Luckily we had another client who doesn't have children so my boss sent him there, but that won't always be the case.

 

[PayrollHRGuy]

We were advised we were not allowed to ask if applicants were felons so the question wasn't asked during the interview.

You were advised wrong.

From the NY State Department of Labor site.

It is unlawful to ask an applicant or employee whether he or she has ever been arrested or had a criminal accusation filed against him or her. It is also unlawful to inquire about youthful offender adjudications or sealed records. It is not unlawful to ask if a person has any currently pending arrests or accusations. It is also not unlawful to inquire about convictions. See the Previous Conviction section below.

It is unlawful to require an individual to divulge information about the circumstances of an arrest or accusation no longer pending. In other words, the employer cannot demand information from the individual accused in order to “investigate” the circumstances behind an arrest.

The Correction Law provides that an employer may not refuse to hire, may not terminate an employee, and may not take an adverse employment action against an individual because that individual has been previously convicted of one or more criminal offenses, or because of a belief that a conviction record indicates a lack of "good moral character," unless there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held, or employment of the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In order to determine whether there is either a direct relationship or unreasonable risk, the employer must consider the following factors set forth in the Correction Law:

• The public policy of this State, as expressed in the Correction Law, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses
• The specific duties and responsibilities necessarily related to the license or employment sought or held by the person
• 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
• The time which has elapsed since the occurrence of the criminal offense or offenses
• The age of the person at the time of occurrence of the criminal offense or offenses
• The seriousness of the offense or offenses
• Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct
• 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

 

[isis297]

You were advised wrong.

From the NY State Department of Labor site.

It is unlawful to ask an applicant or employee whether he or she has ever been arrested or had a criminal accusation filed against him or her. It is also unlawful to inquire about youthful offender adjudications or sealed records. It is not unlawful to ask if a person has any currently pending arrests or accusations. It is also not unlawful to inquire about convictions. See the Previous Conviction section below.

It is unlawful to require an individual to divulge information about the circumstances of an arrest or accusation no longer pending. In other words, the employer cannot demand information from the individual accused in order to “investigate” the circumstances behind an arrest.

The Correction Law provides that an employer may not refuse to hire, may not terminate an employee, and may not take an adverse employment action against an individual because that individual has been previously convicted of one or more criminal offenses, or because of a belief that a conviction record indicates a lack of "good moral character," unless there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held, or employment of the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In order to determine whether there is either a direct relationship or unreasonable risk, the employer must consider the following factors set forth in the Correction Law:

• The public policy of this State, as expressed in the Correction Law, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses
• The specific duties and responsibilities necessarily related to the license or employment sought or held by the person
• 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
• The time which has elapsed since the occurrence of the criminal offense or offenses
• The age of the person at the time of occurrence of the criminal offense or offenses
• The seriousness of the offense or offenses
• Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct
• 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

So you can ask about convictions...things that the applicant was actually convicted and served time for.

How do we legally handle this situation now though? He can't manage work sites if there are work sites he isn't allowed to be at.

Does my boss have the legal right to let him go in light of how this new information will affect his job or can the guy come after him for discrimination or relatiatory whatever it was the HR person was telling us about?

Or can he reclassify him to a different job title and make him hourly, but if we don't have jobs that he is allowed to work on he would have to use his PTO?

 

[HRZ]

absent information missing about the situation, IF the job requires doing X, Y, and Z and the person is not able to do Z you can fire him for cause if the issue is eligibility for UC ( short term of employment may be another ) You are not required to invent a job which fits what he can do . Absent posting the generic nature of reasons he cannot do Z we are wasting time speculating.

 

[HRZ]

Sorry I missed your earlier post .

IF the job requires doing X and he cannot do X and is assigned to do X, fire him

IF as you posted earlier he walked out...he quit!

 

[PayrollHRGuy]

You can terminate if you can show there is a "direct relationship or unreasonable risk".

As posted above here are the factors that you have to take into account.

• The public policy of this State, as expressed in the Correction Law, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses
• The specific duties and responsibilities necessarily related to the license or employment sought or held by the person
• 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
• The time which has elapsed since the occurrence of the criminal offense or offenses
• The age of the person at the time of occurrence of the criminal offense or offenses
• The seriousness of the offense or offenses
• Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct
• 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

 

[isis297]

Sorry I missed your earlier post .

IF the job requires doing X and he cannot do X and is assigned to do X, fire him

IF as you posted earlier he walked out...he quit!

My boss took him to the site not knowing he couldn't be around minors. The client has 2 teenagers. The guy told my boss he needed to talk to him outside and walked out because legally he had to. That's when he told my boss about his situation.

 

[isis297]

You can terminate if you can show there is a "direct relationship or unreasonable risk".

As posted above here are the factors that you have to take into account.

• The public policy of this State, as expressed in the Correction Law, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses
• The specific duties and responsibilities necessarily related to the license or employment sought or held by the person
• 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
• The time which has elapsed since the occurrence of the criminal offense or offenses
• The age of the person at the time of occurrence of the criminal offense or offenses
• The seriousness of the offense or offenses
• Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct
• 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

Ok, so my boss can either terminate him or reclassify him based on the fact that the offense for which he was convicted will have bearing on his ability to perform his duties. Do you know what the HR person was referring to about us getting in trouble for retaliatory action?

 

[PayrollHRGuy]

Ok, so my boss can either terminate him or reclassify him based on the fact that the offense for which he was convicted will have bearing on his ability to perform his duties. Do you know what the HR person was referring to about us getting in trouble for retaliatory action?

Yes he can be reclassified. Yes he can be terminated. Assuming in both cases there isn't something you haven't told us.

The HR person was probably not fully understanding the NY laws I posted.

 

[HRZ]

OR if he brings skills you seek to the job , he can be carefully scheduled to go just to those sites where he is not in conflict with law.

 

[Just Blue]

Because we were told by an HR specialist that basically it was our fault for not doing background checks and that we should do them moving forward. She said that we couldn't just fire him because it could be deemed retaliatory discrimination or something like that...which I don't understand because NY is an at will state and this affects his ability to do his job.

In way, shape or form is his legal issue a protected class. Tell you boss to consult with an Attorney if he will feel better about doing what should be done. This employee is a legal liability to his (your boss) company.