Fired after background check comes in

[mycarlb]

Thank you for your help... I do appreciate it very much

 

[CO19]

CO, I've never heard of any federal law that makes it illegal to eliminate a candidate on the basis of his or her criminal record.

> That is NOT what I said.... read 1st response again. There are federally mandated criteria that a private employer MUST CONSIDER if not hiring someone on the basis of criminal records ALONE... i.e. only factor to not hire them. This is spelled out quite clearly in the EEOC Notice I provided. It can be read in its entirety, along with case law, in the "Safe Hiring Manual" among other places, which was written by an employment attorney for employers.

If every employer had "free reign" to NOT hire someone due to a criminal record alone, 11-13% of our population would be unemployed on a regular basis and why there are safeguards in place to prevent employers from doing so, as it should be.

Federal mandates/laws trumps "Employer Policy" and can tell you (from business experience) that many employers are lawsuits waiting to happen b/w negligent hiring, negligent retention, and EEOC violations. This company is a lawsuit waiting to happen from a saavy applicant and employment lawyer if a "company policy" (as OP stated) prohibits them from hiring anyone with a conviction. That is what is going to get them nailed and EEOC will investigate this.

In this particular case, the company may ascertain that due to "NATURE" of conviction, he is not suitable, however, that would be interesting to see if they can prove, esp due to the amount of time that has passed. Hell, sex offenders have jobs, as they should!

The only violation of NY Law that would be remotely applicable (from what OP has posted) is if they considered the conviction beyond 7yrs and applicant earned or was expected to earn less than 25K (posted statute in other post).

 

[You Are Guilty]

In this particular case, the company may ascertain that due to "NATURE" of conviction, he is not suitable, however, that would be interesting to see if they can prove, esp due to the amount of time that has passed.

I believe I already said that, although the length of time elapsed is only one of many factors (see below).

The only violation of NY Law that would be remotely applicable (from what OP has posted) is if they considered the conviction beyond 7yrs and applicant earned or was expected to earn less than 25K (posted statute in other post).

And with that comment you've really stepped in it. Try reading the statutes I posted rather than some lawyer's interpretation and you'll see why. I'll make it easy for you:

§ 752. Unfair discrimination against persons previously convicted of
one or more criminal offenses prohibited. No application for any license
or employment, to which the provisions of this article are applicable,
shall be denied by reason of the applicant's having been previously
convicted of one or more criminal offenses, or by reason of a finding of
lack of "good moral character" when such finding is based upon the fact
that the applicant has previously been convicted of one or more criminal
offenses, unless:
(1) there is a direct relationship between one or more of the previous
criminal offenses and the specific license or employment sought; or
(2) the issuance of the license or the granting of the employment
would involve an unreasonable risk to property or to the safety or
welfare of specific individuals or the general public.

§ 753. Factors to be considered concerning a previous criminal
conviction; presumption. 1. In making a determination pursuant to
section seven hundred fifty-two of this chapter, the public agency or
private employer shall consider the following factors:
(a) The public policy of this state, as expressed in this act, to
encourage the licensure and employment of persons previously convicted
of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to
the license or employment sought.
(c) The bearing, if any, the criminal offense or offenses for which
the person was previously convicted will have on his fitness or ability
to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal
offense or offenses.
(e) The age of the person at the time of occurrence of the criminal
offense or offenses.
(f) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his behalf,
in regard to his rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer
in protecting property, and the safety and welfare of specific
individuals or the general public.

And while I admit I am much more familiar with NY law than Federal in this arena, I too have never heard of any federal "mandate" to consider any factors concerning a criminal conviction when hiring, nor did I find any after a cursory search of the EEOC website. Care to provide a direct link?

 

[CO19]

Care to provide a direct link?[/QUOTE]

> the EEOC should be able to provide this to anyone interested in reading. However, a google search revealed a few references to the Notice:

http://www.usdoj.gov/olp/pdf/ncicreportaugust32005.pdf
(Attorney Les Rosen - Author of "Safe Hiring Manual"

http://www.workrights.org/issue_other/oi_analysis_zero_toler.html

 

[You Are Guilty]

Not to be repetitive, but Beth already said:

CO, I think you're taking the EEOC's guidlines out of context. This would only be an EEOC claim if the company's policy resulted in disparate impact. That doesn't seem to be the case here.

And that's all that the EEOC covers - disparate impact. There is no other protected class for convicts. This is a state law issue.

 

[cbg]

http://www.eeoc.gov/abouteeo/overview_laws.html

CO19, please show us where on this link from the EEOC web site there is any protection based on criminal record.

 

[CO19]

http://www.eeoc.gov/abouteeo/overview_laws.html

CO19, please show us where on this link from the EEOC web site there is any protection based on criminal record.

> With all due respect, I'm not here to conduct legal research for other alleged HR professionals/"experts", nor "debate" (as request for a "link" appeared to ellude to), and quite surprised this seems to be a new "revelation" to some. I already provided some resources and references/links for the OP, but will repeat one last time. If you disagree or need further clarification to hone in on your hiring practices, call the EEOC directly, or rather the Commission, who renders these Notices.

The EEOC's position when it comes to the use of criminal records -
"(a)n employer's policy or practice of excluding from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessisty." (See EEOC Notice N-915 (2/4/87). The EEOC defines business necessity in the same Notice as -

"The (employer) must show that it considered these three factors to determine whether its decision was justified by business necessity:

1. The nature and gravity of offense or offenses
2. the time that has passed since the conviction and/or the completion of the sentance, and
3. The nature of the job held or sought.

WHAT DOES THIS MEAN IN PLAIN ENGLISH?
AN EMPLOYER CANNOT SIMPLY SAY "NO ONE WITH A CRIMINAL RECORD NEED APPLY."

Source: "Safe Hiring Manual", pgs 173-174 - referenced through out entire book - buy it, read it, and study it!

 

[cbg]

I'm not asking you do to legal research for me; I'm suggesting you put your money where your mouth is. Your credibility is suffering.

 

[CO19]

I'm not asking you do to legal research for me; I'm suggesting you put your money where your mouth is. Your credibility is suffering.

LOL.... Let me get this straight. Because you were unable to find a link or directive on the EEOC website regarding their opinions about criminal records, it must NOT exist, therefore, I'm not credible? Lady, if you are in fact an "HR Consultant", you might seriously want to consider a new career or increase your E&O coverage to protect your clients, b/c you will eventually need it. "Attacking the Messenger" was your only resort because you can't disprove anything I've written that came straight from the EEOC, yet to lazy to do your own due-diligence before spouting back. Get over yourself!

 

[cbg]

Actually no, that's not what I'm saying. But it appears you're not going to get what I AM saying no matter how many times I, or anyone else, says it, so I suggest you take a little of your own advice and get over yourself.

NO ONE is saying that it's okay for a company to have a policy in which they will automatically eliminate anyone with a criminal record. We all agree that this creates a disparate impact.

What I am saying, and what the link I provided supports, is that people with criminal records are not a protected category under the EEOC.

Now, is that too difficult for you to understand?

 

[CO19]

What I am saying, and what the link I provided supports, is that people with criminal records are not a protected category under the EEOC. Now, is that too difficult for you to understand?

> You show me ANYWHERE where I have said that "criminal records are a protected category under the EEOC." You obviously have NOT followed this thread word for word and/or have completely taken out of context my reply to the OP and SOLE purpose of my reference to EEOC Notice N-915 (2/4/87). How about this, if you have a response to make to an OP, then make it. Otherwise, don't try to skew the messages of others to draw away from the what other repliers are stating, avenues to consider, relevant laws, and traditional "Best Practices".

YOU DON'T KNOW WHETHER THE OP'S BROTHER HAS A BONA-FIDE CLAIM WITH THE EEOC ANYMORE THAN ANYONE ELSE HERE (WE DON'T EVEN KNOW HIS RACE AMONG OTHER FACTORS THAT AN EMPLOYMENT ATTORNEY COULD VALIDATE AS A VIABLE CLAIM WITH THE EEOC WHEN PRESENTED WITH ALL THE FACTS AND HISTORY SURROUNDING HIS ORDEAL) AND YOU ARE *NOT* AN EMPLOYMENT ATTORNEY, SO QUITE ACTING LIKE ONE!

 

[cbg]

I give up.

At no time did I say whether the OP's brother did or did not have a legitimate claim. I never claimed to be an employment attorney and I have the same right to answer posts on this board as anyone else. If the moderators have a problem with my responses, they can tell me so. Until then, it's not up to you to tell me how I can or cannot post.

Mary, can we lock this thread please?

 

[CO19]

I give up.

And WHO'S credibility is suffering? LOL..... Mary, better "lock the thread" before cbg makes any more of an ass of herself than she already has! HURRY!!

 

[You Are Guilty]

The "point", if there is one any more, is that this is a STATE issue, not Federal. The NYS HRC is the proper venue to file the complaint.

 

[CO19]

The NYS HRC is the proper venue to file the complaint.

YAG,
Lets say, hypothetically, the OP's brother worked at the branch office of employer in NY, however, the corporate office is headquartered in CA. Would NY still remain the proper venue for filing?