In our last post, we provided an overview of the relatively new public policy called Ban the Box, requiring employers to remove questions concerning convictions from their job application and preventing employers from asking about criminal convictions during the initial phase of the hiring process. This protects job applicants from having criminal background checks done before consideration is made regarding the job applicant and forcing the applicant to make a decision to check off the box inquiring about a criminal record on the initial application. While this very important and revolutionary public policy will help give so many people a second chance in life, and is long overdue, many business owners, especially small business owners in larger metropolitan areas are not happy with this policy. We will discuss the responsibility of the employer and business owner as well as the role a private investigator can play in assisting with the process.
While the intent of Ban the Box policy is the same across the various states and municipalities that have implemented it, there are subtle differences with each bill passed. Thus, we will concentrate our discussion with the bill that was passed on June 10, 2015 by the New York City Council called the Fair Chance Act and implemented into law on October 27, 2015. In essence, an employer cannot ask about an applicant’s criminal record until a conditional job offer has been made to the prospective employee. With that said, there are certain occupations which are exempted from this law including law enforcement agencies, positions where criminal background checks are required by local, state and federal law and any business which employs fewer than four people.
The components of the bills are as follows:
- A business cannot advertise a job that states “no felonies” or “must pass background check.”
- Bans any box or question about criminal history on job applications.
- Bans any question about criminal history during job interviews.
- An employer can check your criminal record history only after a conditional job offer.
If the applicant is denied a position because of a criminal record, the employer must explain the reasons in writing. The employer must attach the findings of the criminal record and be able to prove that the criminal history record would create an unreasonable risk. The employer must keep the position open for three days, to allow for a response from the prospective employee. If an employer does not comply with the bill, an applicant can file a grievance with the New York City Commission of Human Rights within one year or directly with a court of law within three years. Those applicants who are successful either through the City of New York or the Courts will receive remedial action such as reinstatement or back pay. The employer will be subjected to fines.
Some business owners are upset with the law, stating that they will not know the true identity of whom they are hiring, possibly opening themselves to potential lawsuits. However, the law does not prevent an employer or business from conducting a criminal background check as long as the applicant has been provided a conditional offer. In fact, a criminal background check is critical and still should remain an integral part of the employment process. An employer should be made aware if a prospective employee was convicted of fraud or embezzlement and is applying for a financial position, such as an accountant or bookkeeper. An employer needs to be certain that the prospective employee of a retail establishment was not convicted of grand larceny. With that said, an employer must take care to abide by the rules of the NYC Fair Chance Act. If an employer or business becomes aware of a criminal matter, the criminal report must be forwarded to the employee. As such, it is more than ever critical that business use the services of a professionally licensed private investigation firm such as Integrated Security Services.
Integrated Security Services is a full service, boutique private investigation firm. We have access to proprietary databases and a direct link with the New York State Office of the Court Administration, which is the official repository for all criminal records within New York State, including the New York Metropolitan area. Regardless of whether there is a criminal record or not, we receive a response back from the Office of the Court Administration on their letterhead. This is extremely important, due to the fact that the Fair Hiring Practice requires the business to forward the results to the candidate. Having an official document will carry more validity than some computer printout generated by one of the many data mining companies that advertise cheap criminal searches. More importantly, utilizing the services of a small private investigation firm gives the business owner the opportunity to discuss the criminal findings with a case manager. Integrated Services has a dedicated manager for every request, regardless of the request.
Delaying the question about criminal history did not slow the hiring process down, according to Michelle Navidad Rodriguez of the National Employment Law Project, but has actually improved the bottom line for businesses by increasing their productivity. People are looking for a second chance in life, and once they are provided with the opportunity, most people will excel; however, businesses cannot overlook the potential problems of hiring someone with a criminal record, especially if the past criminal conviction may be related to the position being filled. Thus, it’s critical that business owners utilize the services of a trained and licensed private investigation firm to ensure they are hiring the right person for the job.