Changes to the Screening Process...
to Hire or Not to Hire; 23A; How Easy is the Decision?
 By Mario Pecoraro, Jr., L.P.I., President/CEO
Hiring Managers, faced with daily time and resource constraints have the challenge of filling key positions. In an ever changing economy where there is an increased level of scrutiny and interest in reducing expenses, human resource professionals are now taxed with more duties and responsibilities in order to be compliant with hiring practices in New York. At the same time, they must be cautious to avoid pitfalls in the process.
Aside from the existing Federal Fair Credit Reporting Act and New York Fair Credit Reporting Act, further amendments to the General Business Law have brought more constraints on employers requiring further caution in making hiring decisions. Employers in New York must re-evaluate the current hiring methods in order to comply with changing legislation in 2009. The new laws have been brought forward to assist convicted criminals find employment and therefore have a direct impact on all employers. Ultimately the purpose is to make it clear that employers cannot discriminate against potential employees simply because of a past criminal conviction. Should an employer choose to not hire based upon a conviction, the employer must establish a direct relationship to the position(s) for which the applicant is being considered. The entire process should be handled with extreme caution and done so consistently to avoid potential litigation.
The changes which took place effective February 1, 2009 include two areas of the General Business Law: sections 380c and 380g, respectively. Said amendments require the employer to provide notice to the applicant that a report may be sought and further indicate that a copy of 23A of the New York Correction Law to the consumer, setting forth the antidiscrimination policy concerning convicted criminals, regardless of whether the report contains any conviction information. In addition, section 380g states that if a consumer report contains a criminal record then the user shall provide a copy of Article 23A of the Correction Law to the consumer.
Have you reviewed your existing Background Investigations Policy to ensure that you are compliant? Is your provider alerting you to the changes and their implications in the process? In an ever changing litigious society, it is imperative that employers be proactive and compliant with amended laws in order to remain competitive and continue to mitigate potential losses in the employment process.
Social Security Number - The Hidden Meaning and
How it Helps with Background Investigations
By Derek Devenpeck, Account Executive
 The social security system has been around since 1935 and every employee must have one – but what do the numbers mean? The nine-digit social security number is divided into three segments; the area numbers, group numbers, and serial numbers (AAA-GG-SSSS). The area numbers are issued based upon where the individual resided when they applied for their social security card and each state is assigned a unique set numbers. The group numbers range from 01 to 99, but are not assigned in consecutive order. These numbers are connected to the area number, which is allocated to each state. The last four digits, known as the serial numbers are randomly assigned, running consecutively from 0001 – 9999 and are within each group designation. For more information or to confirm the validity of a social security number, please contact our office to speak with an investigative professional.
 It is a common misconception that by running an applicant’s SSN, you can access criminal conviction records. In reality, the SSN is able to provide the scope of an investigation and independently validate the identity of the applicant. The three major credit bureaus, Equifax, Experian, and Transunion monitor and collect data individuals provide to creditors. This means, when an individual takes a mortgage or car loan out they are supplying the creditor with there name, address and SSN. Therefore, the first step in conducting a background investigation should be to independently verify there identity as well as identifying aliases and/or additional areas the applicant failed to provide on the release form. Since criminal convictions are indexed by the individuals name, date of birth and jurisdiction, this process will ensure the right names and areas are investigated.
Insurance Fraud Investigation Success Stories
 By Jeffrey Schermerhorn, Account Executive
Alliance Worldwide Investigative Group, Inc. has conducted several successful insurance investigations in recent months resulting in findings of fraud, reductions in claim payments and the overall settlement of claim files as a result of our investigative efforts.
Alliance Worldwide Investigative Group, Inc. is a fully licensed and bonded full service investigative firm located in Clifton Park, New York. We offer complete investigative and due-diligence services to serve businesses, insurance claims professionals and attorneys.
View samples of our recent investigations.
 One of Alliance Worldwide’s strengths is working in Special Investigative Services to combat Insurance Fraud to serve insurance defense professionals including attorneys, adjustors and SIU personnel anywhere in New York, Vermont, Connecticut and New Jersey. While not every claim that is submitted will be a fraudulent one, every questionable claim should be under the scrutiny of a qualified licensed bonded and insured investigative firm.
Our Insurance Fraud Division specializes in many facets of insurance claims investigations, including workers’ compensation, liability, and all forms of personal injury claims. Insurance Claims Investigations must be handled in a delicate manner to ensure proper investigative methods are utilized.
The licensed private investigators in our Insurance Fraud Investigation division are highly trained and experienced in all forms of insurance related matters. Our team has the ability to handle assignments of all types including complete surveillance, confirming identities, locating claimants, extensive claimant questioning, conducting activity checks, and conducting all forms of covert surveillance.
Employer Education Act
 By John M. Bagyi, Esq., SPHR
On August 5, 2008, Governor Patterson signed into law the Employer Education Act which is intended to increase awareness of New York State’s prohibition of employment discrimination based on an applicant’s/employee’s criminal conviction(s). As the Act took effect immediately, it is important that New York employers understand both existing law concerning consideration of criminal convictions in employment decisions and the newest legal requirements.
Under Article 23(a) of the New York State Corrections Law and Section 296 of the New York State Executive Law (Human Rights Law), public and private employers are prohibited from maintaining blanket prohibitions on hiring individuals with a conviction record. Rather, under these laws, employers must consider each person who applies for a job individually and can deny employment only if:
-
the past conviction(s) are directed related to the ability to perform the specific job sought; or
-
because of the conviction history, the individual poses an unreasonable risk to the public or to property.
In making this determination, the employer must look at the specific job duties and responsibilities of the employment sought and consider the bearing, if any, the criminal offense(s) for which the employee was previously convicted, will have on the fitness or ability to perform one or more job duties. The employer must also consider:
-
the public policy of the state to encourage employment of individuals with prior convictions;
-
the time since the crime was committed;
-
the applicant’s age at the time the crime was committed;
-
any information the applicant produces regarding rehabilitation; and
-
the legitimate interest of the employer in protecting property and the safety and health of specific individuals or the general public.
In addition, a Certificate of Relief from Disabilities or Good Conduct produced by the applicant gives rise to a presumption of rehabilitation in regard to the offense(s)). While such a Certificate is not dispositive, employers must consider it as part of their analysis.
Finally, upon the request of an applicant previously convicted of one or more criminal offenses who has been denied employment, employers must, within thirty days, provide a written statement setting forth the reasons for such denial.
In addition to these longstanding obligations, the Employer Education Act now requires employers and potential employers receiving consumer reports containing information on criminal convictions to: (1) provide a copy of Article 23(a) of the Corrections Law to the individual about whom the information was sought; and (2) conspicuously post Article 23(a) in the workplace.
The Employer Education Act also establishes a rebuttable presumption in favor of excluding from evidence prior incarceration or conviction information when an employer has “made a reasonable, good faith determination that such factors weigh in favor of hire or retention of that applicant or employee.” Thus, when an employer fulfills its obligations under the Corrections Law in hiring or retaining an applicant or employee, and is later sued for negligent hire or retention of that applicant or employee, it will be presumed that evidence concerning the employee’s prior incarceration or conviction will not be admitted into evidence.
As a practical matter, all employers who utilize background checks to obtain information regarding criminal convictions should immediately take steps to comply with the Employer Education Act. Specifically, employers should:
-
educate those who make hiring decisions on the factors that must be considered before screening out an applicant based on a criminal conviction;
-
conspicuously post Article 23(a); and
-
provide a copy of Article 23(a) to applicants on whom criminal record information is obtained.
The information contained in this column is intended as general background information on labor and employment law. It is not to be considered legal advice or a substitute for professional counseling or advice.
John M. Bagyi, Esq., SPHR, serves as Deputy Managing Attorney of Bond, Schoeneck & King’s Albany Office, where he counsels and represents employers of all types and sizes in a variety of labor and employment contexts. John can be reached at jbagyi@bsk.com or 518-533-3229.
January 13, 2009: Elkhart woman arrested for thefts from Conn-Selmer
This article discusses the arrest of an employee from a musical instrument factory in Elkhart, Indiana who stole a total of $13,300 worth of musical instruments. Another person then allegedly pawned the instruments. Had the company conducted a background investigation on the employee before hiring, this situation could have been prevented. For more information, visit http://www.wsbt.com.
January 27, 2009: With background checks, laws complicate hiring
Background investigations are a great way to filter out candidates that are not suitable for a position. However, New York laws state that companies cannot deny a candidate a job solely because of a criminal background. This law was put into effect in an effort to give people with past offenses the opportunity to return to the workplace. However, since New York is an “employment-at-will” state, employers do not need to state reasons for hiring or firing, thus allowing a conviction to prevent an applicant from being hired. For more information, visit http://libn.com.
January 22, 2009: What to expect with a background check
In this article, Employment Screening Resources (ESR), which is a leading national employment screening background firm, has released a list of trends for employers to expect throughout 2009. This list addresses everything from Increased Governmental Mandates to the new laws passed in New York State giving ex-offenders a second chance for a career. For more information, visit http://www.prleap.com/pr/131754.
February 24, 2009: DEA Busts Art Teacher for Pot Sales
This article addresses the incident of an art teacher selling marijuana. Lonardelli was an art teacher at Goff Middle School in the East Greenbush Central School District. He had sold marijuana to an undercover investigator during the summer of 208. Lonardelli was also involved in a distribution ring which was trafficking significant amounts of the drug each week. For more information, visit http://www.northcountrygazette.org.
February 13, 2009: Hiring report stings schools
Within the last year, New York State schools have hired 30 candidates that had criminal backgrounds. Of these 30 candidates, some were hired by local districts including Bethlehem and Schenectady. The article states that these candidates were hired because the background investigations conducted by the Education Department took far too long leaving the schools with no choice but to hire. This highlights the importance of delivering prompt results so that the proper hiring decisions can be made. For more information, visit www.timesunion.com.
 Company News
 Thomas Canastar, joined Alliance Worldwide Investigative Group, Inc. in December of 2008 and is conducting special investigations for the company. He is a retired NY State Police investigator. His experience stems from operating his own private investigation business, working as an SIU investigator for Zurich, AIG, Robert Plan and New York Central Mutual insurance companies over the past 20 years.
|
