Home

Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.465.7511, ext. 210
www.bcnys.org

BILL:

S.2425-A (Carlucci) / A.2343 (Aubry)

Support

SUBJECT:

Relates to Unlawful Discriminatory Practices; Requires Employers to Make a Conditional Offer of Employment Before Inquiring About Any Criminal Convictions of a Prospective Employee

 

DATE:

June 9, 2017

 

This bill would prohibit employers from making oral or written inquiries about an applicant's criminal convictions until after a job offer has been made. The Business Council opposes enactment of this bill.

This change is not needed. There is no shortage of current requirements under both the Executive and Correction Laws prohibiting discrimination in employment related decisions concerning criminal convictions nor is there a shortage of significant penalties available under both for the Commissioner of Human Rights' use.

Subsection 15 of section 296 of the Executive Law and sections 752 and 753 of Article 23-A of the Corrections law clearly label an employer's disqualification of an employee or applicant from employment due to a criminal conviction unrelated to the tasks and responsibilities of the job as a prohibited discriminatory practice.

The penalties available to the Commissioner of Human Rights to levy upon violating employers include hiring, reinstatement or upgrading of the employee with back pay, the awarding of compensatory damages, the assessing of civil fines and penalties up to fifty thousand dollars for an unlawful discriminatory act, or up to one hundred thousand dollars for an unlawful willful, wanton or malicious discriminatory act.

Nonetheless, the Sponsor states, "Unfortunately, many employers maintain blanket barriers to employment based solely on criminal conviction records even when the conviction may be completely unrelated to the job sought and no threat to the public or property is present." It is further stated that, "This bill will help to insure that employers abide by the standards and do not automatically disqualify applicants based only on a criminal conviction."

With the arsenal of employer fines and penalties available to the Commissioner, it would seem that that enforcement of the current laws may be the issue here, not the need for imposition of additional mandates on the state's employers.

Prohibiting employers from inquiring about criminal convictions prior to hiring would cause an unnecessary delay in the hiring process for both employers and applicants. An applicant who would be disqualified due to a particular conviction pre-offer would be disqualified due to the same conviction post-offer, but requiring employers to wait to run the check until an offer has been made only delays the process, leaves a job empty longer, and denies the employer the opportunity to fill that empty slot with someone who may accept another job in the meantime. Moving the background check to post-offer lets the employee know that the sole reason for rejection was the conviction—but that is already accomplished by the federal Fair Credit Reporting Act.

As we work toward improvement of the state's economy and the creation of jobs lost in the last several years, the Legislature needs to send loud and clear positive messages to businesses in and out of the state. Enactment of this bill sends no such message. In fact, it sends the all too familiar message that the New York State Legislature stands ready to find new and different ways to interfere with business and worsen the business climate.

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