Nationwide, COVID-19 has created an unprecedented push to release inmates from jail or prison, often before their sentences are complete. The fear is that the novel coronavirus will spread rapidly among prison populations due to close-quarters living and limited access to hygiene options. Few states have been more active than New York, where Governor Andrew Cuomo moved in late March to release 1,100 low-level parole violators from jail.
Since then, Cuomo and the state have made additional efforts to reduce the spread of COVID-19 in prisons, including one initiative to release aging inmates and another to release nonviolent offenders with 90 days or less left on their sentences. These releases create unique concerns for employers, who must understand how newly-free individuals are impacted by hiring processes from background checks to ban the box legislation to New York’s Article 23-A.
The most relevant legal statute is Article 23-A of New York State’s Correction Law, “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses.” Article 23-A states that “unfair discrimination against persons previously convicted of one or more criminal offenses [is] prohibited.” Article 23-A limits the ability of employers to disqualify job candidates or terminate employees based on criminal record information.
If an employer wishes to take adverse action against a candidate or employee because of past criminal convictions, they must be able to prove that one of two conditions exists. Either there must be “a direct relationship between one or more of the previous criminal offenses and the specific…employment sought or held by the individual” or “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
What is required by Article 23-A is the same thing that the EEOC has been recommending that employers do since its inception. Rather than simply disqualifying a candidate for any sign of criminal history, employers should consider relevant details pertaining to the criminal offense. These details may include the severity of the crime, how much time has passed since conviction, the age of the individual at the time of the offense, whether there have been repeat offenses, and any information that points to good conduct or rehabilitation of the candidate.
By taking these considerations into account, employers can decide whether a criminal conviction is relevant and whether it has any bearing on the ability of the candidate to perform the job.
New York is a progressive state regarding criminal justice reform, which means that employers need to tread carefully when making decisions based on background check findings. Beyond Article 23-A, New York has multiple ban the box policies in place, including a statewide law that bans the box for government jobs plus policies in Buffalo, Westchester County, Rochester, and New York City that ban the box for private employers. These policies bar employers from asking about criminal history on job applications, among other requirements.
As New York State continues to release inmates from jail and prison due to COVID-19, employers need to be cognizant of how they are screening for criminal history and making subsequent hiring decisions. At backgroundchecks.com, our Learning Center offers helpful resources that you can consult from guides on EEOC recommendations to details about ban the box legislation.