New Law Makes It Harder to Introduce Evidence of Prior Incarceration or Conviction in Negligent Hiring Claims By on September 29, 2008

Under a negligent hiring theory, an employer's liability arises from its failure to take reasonable care in making hiring decisions, thereby placing the newly hired employee in a position to cause foreseeable harm to others. The negligent hiring theory creates an incentive for employers to avoid hiring previously incarcerated individuals. To avoid such tort exposure, many employers choose not to hire ex-offenders when they apply for employment even though New York Law provides that to do so under certain circumstances constitutes unlawful discriminatory practice. The employer's dilemna poses a serious problem for society.The unemployment rate for ex-offenders in New York is very high – up to sixty (60%) of ex-offenders are unemployed one year after release. Moreover, there is a strong statistical correlation between unemployment and recidivism. In New York State, eighty-three (83%) of individuals who violate the terms of their probation are unemployed at the time of the violation. Without employment, ex-offenders are unable to meet their basic needs and fully reintegrate into society. Ex-offenders, however, face a number of barriers to reentry into the workforce such as the employment application, which often asks the applicant, “Have you ever been convicted of a crime?” Many employers are forced to ask this question to avoid a possible negligent hiring claim. To help out would-be employers who would give an ex-offender a chance, legislation signed into law earlier this month amends Section 296(15) of the New York Executive Law (Human Rights Law) to create a rebuttable presumption in favor of excluding in a negligent hiring case evidence of an employee’s past criminal record where the employer has complied with Article 23-A of the Correction Law. Article 23-A (N.Y. Correction Law section 752) provides that employers can only reject an applicant based on a record of criminal convictions if there is a "direct relationship" between the criminal offense and the specific employment sought, or if granting the employment would involve an unreasonable risk to property or personal safety. A rebuttable presumption is an assumption of fact accepted by the court until disproved. Thus the initial burden is placed upon the plainitff to offer proof that the employer did not comply with Article 23-A, rather than upon the employer to prove that it did. Importantly, this legislation does not reduce the standards of Article 23-A - it aims only to lower the risk for empolyers who comply with the necessary steps. As pointed out by the New York City Bar Association, this legislation does not change an employer’s responsibility under New York law to make sure an ex-offender is fit to be employed in a specific job. An employer must consider if there is a “direct relationship” between the criminal conviction and the specific employment sought, or if the employment would involve a reasonable risk to property or personal safety. The employer still has to make sure that the applicant meets certain standards. The employer must consider if there is a legitimate interest in protecting property, the safety of specific individuals, and the safety of the general public. The employer must also weigh the specific duties and responsibilities of the employment and what relevance the ex-offender’s criminal history could have on his or her suitableness for the job, as well as the time that has elapsed since the criminal conduct occurred and the age of the occurrence. Lastly, the employer must deliberate on the seriousness of the applicant's offense(s), and any evidence of rehabilitation that the ex-offender presents (i.e. Certificate of Relief from Disabilities or Certificate of Good Conduct). In introducing this bill, the bill's sponsors in the New York Assembly point out that providing some level of protection from lawsuits for an employer who complies with Article 23-A and makes a good faith, reasonable determination to hire a person with a criminal record would aid both employers, who are currently wary of any liability that may occur, and the applicant, who will have increased opportunities to obtain gainful employment and reintegrate into society. Ultimately, this amendment could also have the dual effect of reducing litigation and lowering recidivism rates. The text of Executive Law S.296(15) as amended reads: 15. It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of "good moral character" which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law. Further, there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee's past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.

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