Category: Discrimination

October 3, 2017

New York Law Protects Employees and Applicants with Criminal Records

New York employers cannot have blanket policies against hiring employees with criminal records. Instead, they must carefully consider several factors before using an applicant’s criminal record to deny employment.

(Some cities in New York have passed “ban-the-box laws” that prohibit employers from asking about criminal convictions on job applications. Read more about that topic here.)

New York Corrections Law

The New York Corrections Law codifies the state’s public policy supporting employment of people with criminal records.

It provides that employers may not make negative employment decisions by reason of the individual’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 individual 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 employment sought or held by the individual; or

(2) 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.

Note that this law only applies to prior convictions. It does not apply to convictions occurring during employment with the employer in question.

The law identifies 8 factors that employers must consider in deciding whether a criminal conviction disqualifies an individual from employment in a particular position.

The factors are:

New York’s public policy encouraging the employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the employment sought or held by the person.
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 of the job’s duties or responsibilities.
The time elapsed since the criminal offense or offenses.
The age of the person at the time of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Notice to Applicant

If a job candidate with a criminal record asks an employer for a statement of the reasons they were denied employment, then the employer must provide one in writing within 30 days.

Employers who learn of criminal records through background checks must satisfy additional notice requirements.

New York Human Rights Law

An employee with a criminal record can claim discrimination on this basis under the New York State Human Rights Law. This law prohibits many forms of employment discrimination, including race, sex, age, and disability discrimination. But it also specifically references violation of the Corrections Law provisions above as violating the Human Rights Law.

As a result, applicants and employees can file claims of criminal record discrimination like other employment discrimination claims in New York. This means they can file a complaint with the New York State Division of Human Rights or directly with a court.

Criminal Records and Federal Employment Law

Federal employment law does not expressly protect employees with criminal records. However, in 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance cautioning employers.

The EEOC explained how employment decisions based on criminal records could result in discrimination based on another protected category. Specifically, because certain races and ethnic groups represent a disproportionate percentage of individuals with criminal records, denying employment based on convictions is arguably the same as denying it based on race, national origin, etc.

The EEOC expects employers to consider various factors before making employment decisions based on criminal records. These are similar to the New York Corrections Law factors listed above.

How To Stay Out of Trouble

These laws do not say that employers can’t use criminal records as part of their employment decisions. Rather, they mean that employers must evaluate each situation individually.

Employers should document their consideration of all of factors listed above any time they deny employment based on a prior criminal conviction. This documentation alone will improve your defense of a criminal record discrimination claim. Employers who can’t show they weighed the statutory factors may not be able to overcome that failure.

Remember that the overriding question is how closely related the convictions are to the jobs in question. Banks probably need not hire former bank robbers. But clothing stores probably can’t turn down applicants because of their misdemeanor public intoxication charges from college.

The facts of each case matter. If there is any doubt, then you should speak with an employment lawyer familiar with these situations before proceeding. If you didn’t, and now face a discrimination complaint, read this.

September 21, 2017

Don’t Forget GINA

The federal Genetic Information Nondiscrimination Act (GINA) took effect in 2009. Today, most employers have still never heard of the law, which makes it illegal to discriminate against employees and applicants because of genetic information. Those employers who have heard of GINA probably don’t understand how expansive its protections are.

First, the law defines “genetic information” extremely broadly. It’s not just the results of genetic tests.

Second, the law not only directly prohibits harassment and other discrimination, but also has strict rules against acquiring genetic information.

What Is Genetic Information?

“Genetic information” includes information about:

An individual’s genetic tests;
The genetic tests of that individual’s family members;
The manifestation of disease or disorder in family members of the individual (family medical history);
An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Genetic information does not include information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.

GINA also defines “family member” broadly to include:

(1) A person who is a dependent of that individual as the result of marriage, birth, adoption, or placement for adoption; or

(2) A first-degree, second-degree, third-degree, or fourth-degree relative of the individual, or of a dependent of the individual.

In other words, family member includes the employee or applicant’s parents, siblings, children, (great) (great-great) grandparents, (great) (great-great) grandchildren, (great) uncles, (great) aunts, nephews, nieces, first cousins, and first cousins once-removed. And it also includes all of those relatives of the individual’s dependents, which could include step-children and adopted children. Hence, an employee’s genetic information could include information that has absolutely no genetic relationship to them personally!

GINA Prohibits Discrimination

GINA applies to all U.S. employers with 15 or more employees. It prohibits the use of genetic information in making employment decisions. This includes hiring, firing, promotions, compensation, and other terms and conditions of employment.

The law also prohibits harassment and retaliation related to genetic information.

Rules on Acquisition of Genetic Information

GINA also generally prohibits employers from requesting, requiring, or purchasing genetic information about applicants and employees.

These rules may be the biggest trap for the unwary under this law. While most employers aren’t trying to discriminate based on genetic information (even as broadly defined here), they might be acquiring genetic information, especially family medical history.

The EEOC’s GINA regulations indicate that:

“Request” includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.

There are several exceptions to the rule against acquiring genetic information related to:

Inadvertent requests
An employer’s voluntary wellness program
Family and Medical Leave Act (FMLA) certification
Acquisition through commercially and publicly available sources (e.g., newspapers, magazines, books)
Monitoring the biological effects of toxic substances in the workplace
Contamination testing by an employer conducting DNA analysis as a forensic laboratory

These potential exceptions have nuanced parameters and require detailed analysis under the circumstances.

Of particular note, the EEOC regulations include specific safe-harbor language for requesting medical information about the employee. Using this language will protect the employer regarding receipt of any medical information that the provider discloses:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

GINA Confidentiality Requirements

GINA requires that employers maintain any genetic information they obtain about applicants and employees in medical files that are separate from personnel files and treat the information as a confidential medical record.

This is similar to the Americans with Disabilities Act (ADA) protections for an employee’s own medical information.

Learn More

Were you already familiar with GINA? Surprised to learn how much it covers? Want to make sure you’re on top of other important employment law compliance issues?

September 15, 2017

New York Law Protects Employees’ Off-Duty Conduct

Most employers know of the employment discrimination laws protecting race, sex, disability, age, religion, etc. In New York, there is also an additional law that prohibits discrimination against employees based on their lawful off-duty conduct. Like all good laws, there are exceptions.

Section 201-d of the New York Labor Law applies to all employers with employees in New York.

Protected Off-Duty Conduct

The law prohibits employers from discriminating against applicants and employees for any of the following:

Legal political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property.
Legal use of consumable products before the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.
Legal recreational activities outside work hours off of the employer’s premises and without use of the employer’s equipment or other property.
Membership in a union or any exercise of rights under the federal Labor Management Relations Act or New York’s Taylor Law.

Section 201-d includes these specific definitions:

Click to watch my webinar that addresses how New York law might limit what employers can do in response to employee social media use.

“Political activities” means “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.”

“Recreational activities” means “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.”

(Several courts have ruled the law does not protect dating and romantic relationships as recreational activities. But that doesn’t mean you should date your employees. See my post on 5 Bad Business Ideas for Good Employers.)

“Work hours” means “all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.”

The law does not specifically define “consumable products.” However, the term includes legal tobacco products and alcohol.

Exceptions to These Protections

There are exceptions to the above protections.

The law does not protect employees’ off-duty conduct that creates a material conflict of interest related to the employer’s trade secrets, proprietary information, or other proprietary or business interest.

Governmental employees may lose protection for off-duty conduct that is in knowing violation of a provision of a collective bargaining agreement concerning ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties.

The law also does not protect conduct by certain professional employees that violates: a collective bargaining agreement or a certified or licensed professional’s contractual obligation to devote his or her entire compensated working hours to a single employer.

And an employer does not violate this law where the employer acts based on the belief either that: (i) the employer’s actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer’s actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency, or misconduct.

“Smokers’ Rights”

The law intentionally permits employees to smoke tobacco outside of work. This prevents New York employers from having a policy of not hiring employees who smoke. However, the law does allow employers to impose higher insurance contributions on employees who smoke.

The law would similarly allow employees to charge more for insurance based on dangerous recreational activities. (Some call Section 201-d the “bungee jumping law.”)

Consequences of Off-Duty Conduct Protections

This law has been in place for 25 years. However, its importance may be increasing because of the proliferation of social media. As employees have more of their lives documented online, more employers see what their employees are doing outside of work. Management does not always like what it sees. But much of the conduct reflected in social media posts could constitute use of consumable products or recreational activities.

Employers should be careful before acting based on such lawful off-duty activity. Section 201-d has many exceptions, but they are quite nuanced. In addition, various other employment laws may apply. It would be wise to consult with an experienced employment attorney before making employee decisions based on off-duty conduct. (If you didn’t, then now may be a good time to review Responding to Employment Discrimination Complaints.)

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