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Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.465.7517 x210
www.bcnys.org

BILL:

A.11055 (Benjamin)

Support

SUBJECT:

Written notice to employee explaining adverse action

 

DATE:

June 15, 2010

 

This bill would require New York State employers who take an adverse employment action against employees who happen to have a prior criminal conviction to provide them with a written explanation of that adverse action. The Business Council opposes enactment of this legislation.

No inconsistency in the law
The sponsor writes that current employees were mistakenly overlooked when changes to the section were made in 2007. We don't believe that was the case. The Legislature intended that section 754 apply to only applicants for a license or employment and not current employees. The section clearly deals with a denial of employment or a license. Applicants are outside of the employer's sphere and are not involved in regular employer communications. It is the same reason that the federal Fair Credit Reporting Act and the state's general business law have significant disclosure requirements and other obligations under them when an employer elects to order a consumer report, including a criminal background check, on a job applicant that may result in an adverse decision regarding actual employment. Employees already have access to the employer's regular communication systems.

Mandate too vague
Denial of employment or a license by an employer is a clear, understandable and definable action by an employer. “…an adverse action has been taken with respect to a license or employment…” is not defined. It is vague and open to interpretation and imagination. This bill invites an employee, who happens to have a prior criminal conviction, who has any work related grievance with an employer to claim some kind of adverse employment related action and demand a written explanation.

Bad precedent
If this were to be passed into law, the next demand on employers would be for all employees, not just those with prior criminal offenses, who encounter an “…adverse action…” in the workplace receive a written explanation from their employers. This legislation does not consider the unintended consequences of this bill.

For these reasons, The Business Council opposes this legislation and urges that it not be enacted by the New York State Legislature.