Sunday, November 22, 2015

New Big Apple Law Creates Minefield For HOAs; Forbids Inquiries Into Job Applicant's Criminal History Until After A Conditional Job Offer Is Made

In New York City, Habitat Magazine reports:
  • On October 27, a new [local] law [went] into effect that will alter the hiring practices of every co-op and condo board in [New York City]. It's a minefield. Be careful where you step.

    Last summer, Mayor Bill de Blasio signed a new law called Introduction 318-A, commonly known as the Fair Chance Act, which has the noble purpose of prohibiting discrimination against job seekers based on their prior arrests or criminal convictions. At the signing, the mayor said, "This bill opens the door to jobs for New Yorkers who have already paid their debt to society, rather than condemning them to a grim economic future."

    The tool intended to open that door is the criminal background check. Under the Fair Chance Act, employers with at least four employees, including co-op and condo boards, are forbidden to inquire about a job applicant's criminal history until after they have made a conditional job offer. The law further requires that the employer give a written copy of the criminal background search to the job applicant.

    If an employer decides to withdraw a conditional job offer after examining the applicant's criminal history, the employer is then required to give the applicant a written copy of the analysis of the criminal history, and the reasons the job offer was revoked.

    Acceptable grounds for revoking a job offer are if there's a "direct relationship" between the criminal offense and the job's requirements, or if the hiring would create a "reasonable risk" to property or personal safety. Some factors boards can consider are the severity of the criminal offense, when it occurred, how old the applicant was at the time of the crime, and any evidence of rehabilitation and good conduct.

    "Did the guy get out of Sing Sing last week for breaking and entering? That's a legitimate concern," says labor lawyer Robert Sparer, a partner in the firm Clifton Budd & DeMaria. "I've seen a job applicant who'd done time for second-degree murder, and no one did a criminal background check. Boards can still take appropriate action under the Fair Chance Act. But it's not clear where the line lies."
    The first step boards should take, according to attorneys and property managers, is to remove any questions about an applicant's criminal history from job application forms. The second step is to refrain from asking an applicant about his or her criminal history during the job interview — which should be easy for most boards, since they've been conditioned to the perils of even the appearance of discrimination during the interview process.

    But be advised: a misstep can be costly. If job applicants can prove that a board violated the Fair Chance Act, they can file a lawsuit seeking compensatory and punitive damages, as well as attorneys' fees. Wronged applicants can also seek an injunction, forcing the unwilling board to hire them, after all.

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