New York State Eases Burden on Hiring Ex-Convicts

On December 21st the Cuomo Administration implemented a new regulation prohibiting insurance companies from refusing coverage for crime-related losses caused by employees. Effective January 1, 2017, the regulation allows businesses to obtain commercial crime coverage after sustaining losses in a situation involving an employee’s dishonesty.

Prior to the regulation, insurance companies would often deny commercial crime insurance to businesses that hired employees with criminal convictions. The denial was based on the belief that ex-convicts were a higher risk to commit dishonest acts resulting in the businesses losses, and therefore the insurance company should not provide coverage. The new regulation is the first of its kind across the country, and will make it easier for companies to hire ex-convicts.

Under New York State Correction Law § 752, discrimination in employment against people convicted of one or more criminal offenses is expressly prohibited. The law does allow for some exceptions in cases of professional licensure, or if the worker’s criminal activities bring in to question the employee’s ability to safely perform the duties or responsibilities of the job.

In hiring a person with a criminal history employers may reference a guidance document issued by the United States Equal Opportunity Commission laying out the proper use of arrest and conviction records when making hiring decisions. The guide explains a three-factor test, which has come to be known as the Green factor tests that employers must consider upon hiring an ex-convict. The Green factors advise employers to consider: (1) the nature or gravity of the offense or conduct, (2) the time elapsed since the conviction and/or completion of the sentence, and (3) the nature of the job sought or held. After considering the above three factors, if an employer decides to hire an employee, they cannot be refused commercial crime coverage in New York State.

Governor Cuomo believes that if businesses follow the factors in their hiring process, they can employ some of the approximately 2.3 million New Yorkers that have criminal records. Cuomo went on to explain that he hopes the regulation can “break down some of the artificial barriers that prevent previously incarcerated New Yorkers from obtaining work and turning their lives around.” The new regulation will finally protect business owners who choose to abide by the Correction law by removing the unwanted consequence of being uninsured for criminal acts by their employees.

If you believe you have faced discrimination or harassment by your employer or have been wrongfully terminated because of your criminal history, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 email him at sms@StevenSack.com.

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