Corrections costs for the states have quadrupled in the last 20 years — to about $52 billion a year nationally — making prison spending the second-fastest growing budget item after Medicaid. To cut those costs, the states are being forced to rethink parole, probation, and reintegration policies that drive hundreds of thousands of people back to prison every year, not for new crimes, but for technical violations that present no threat to public safety. Of course one of the barriers to reintegration is so many companies blanket policies to not hire anyone with a criminal record.
It is not surprising that New York (along with many other states) is making policy aimed at employers that force them to approach hiring of ex-offenders in a more holistic manner.
This page is devoted to the definition of the Law, and ongoing examples of its enforcement. You can read about our company philosophy on this subject here.
Eight factors to consider
Correction Law §753 provides eight factors to assist employers in determining whether a “direct relationship” exists between a particular applicant’s prior criminal record and the employment position sought:
- the public policy of New York to encourage the employment of persons previously convicted of one or more criminal offenses;
- the specific duties of the job;
- the bearing, if any, the criminal offense or offenses will have on the applicant’s fitness to perform such duties;
- the time elapsed since the conviction;
- the age of the job applicant at the time of the offense;
- the seriousness of the offense or offenses;
- any information in regard to the applicant’s rehabilitation and good conduct; and
- the safety and welfare of specific individuals or the general public.
Article 23-A also provides a second exception to the general rule prohibiting the use of an ex-offender’s criminal record to deny employment. Employers may reject an applicant if his or her employment would create an “unreasonable risk” to persons or property. Unlike the “direct relation” exception, what constitutes an “unreasonable risk” is not defined, but instead must be determined on a case-by-case basis. However, some courts have noted that the eight factors used in determining a direct relation are also useful in finding an “unreasonable risk.”
(March 24, 2011) – New York City Department of Education was found in violation
of section 752 because it failed to actually consider each of the eight factors and make specific notes as to why the applicant did not meet the criteria. In other words, you CANNOT simply have a policy that prohibits anyone with a criminal record. You MUST ACTUALLY CONSIDER each of the eight factors before making a ruling.
(May 28, 2013) – Illegal to have a box on your Job Application asking about previous convictions
On Tuesday, May 28, 2013, the Common Council of the City of Buffalo followed the lead of New York City, Newark, and Philadelphia, when it passed its own “ban the box” ordinance by a vote of 7-2. The ordinance, which amends Chapter 154 of the Code of the City of Buffalo, and which passed by enough votes to override any potential veto by Mayor Byron W. Brown, prevents the City of Buffalo, its vendors, and any Buffalo employer with at least 15 employees from asking questions regarding or pertaining to an applicant’s prior criminal convictions on any employment application.
(April 25, 2014) – Schneiderman ends ban by Bed Bath & Beyond on hiring applicants with criminal convictions
Attorney General Schneiderman’s settlement with Bed Bath & Beyond, a national retailer with 62 stores in New York, will ensure that future applicants for employment are not automatically disqualified based on criminal convictions and without the individualized consideration that is required by New York State law. The agreement also requires that the company pay $40,000 in restitution to individuals who were unlawfully denied employment, and $15,000 to three organizations that assist rehabilitated individuals with their job search.