Background Check Be Gone

Years ago, a co-op was seriously considering hiring a new staffer. But before making an offer, the manager, Dawn Dickstein, president of MD2 Property Group, did a background check on the job candidate – and found he had once been arrested. “It was a situation of an individual who had gotten into some kind of an altercation at a mall many years earlier,” she recalls. “He said he had just happened to be in the wrong place at the wrong time, but the board decided not to go forward with hiring him.”

If Dickstein had faced that situation today, she would probably have had to offer him a job – or face a lawsuit from the rejected applicant.

How’s that?

Say hello to “The Fair Chance Act,” which some say removes the stigma of being an ex-con and which others say creates a new, protected class.

Last summer, Mayor Bill de Blasio signed a new law called Intro. 318-A, commonly known as the Fair Chance Act, which has the 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 that’s intended to open that door is the criminal background check. Under the act, employers with at least four employees, including co-op and condo boards, are forbidden from inquiring 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criminal history, the employer is then required to give the applicant a written copy of the reasons the job offer was revoked.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.”

Backgrounder

“There’s a whole timing issue,” argues Neil Davidowitz, president of Orsid Realty, a management firm. “If I need to fill a spot fairly quickly, I now have to make the offer, then run the background check, and before I reject it, I have to set forth reasons – categories of previous criminal activities that the statute is deeming serious. Now there are going to be lawsuits, human rights complaints, and costs to the buildings. Doesn’t logic dictate that if somebody has committed certain crimes – be they acts of violence, selling drugs, or larceny – you don’t want them working in your building?”

Other questions lurk. “We use a lot of summer relief when employees go on vacation,” says Ellen Kornfeld, vice president of the Lovett Group, a management firm. “We always did criminal background checks on them – and now we can’t until after we’ve offered them a job. How is this going to affect us? I’d like to hear an opinion from the union.”

The union local, 32BJ, representing 70,000 unionized building service workers in New York City, was part of the coalition that worked to pass the Fair Chance Act. “Good jobs can transform people’s lives, and the Fair Chance Act is going to give more New Yorkers a fair chance at transforming their own,” says 32BJ president Hector Figueroa. “This legislation is a key step in reforming our criminal justice system, and it will ensure that men and women with a conviction history have the opportunity to get a good job and a bright future.”

Others disagree. “It’s created a new protected class of people with prior criminal convictions, that’s what it’s done,” says Davidowitz. “Tell me another city where ex-criminals become a protected class.”

“We interviewed someone who had actually been a thief,” says Dickstein of MD2 Property Group. “The board said, ‘Look, it may have been a long time ago, but this person has access to people’s apartments. We can’t have someone in there who has an incident where they have stolen from somebody.’ The candidate didn’t even report it, which gave him less credibility because he wasn’t coming clean up front. He pulled the [old line,] ‘Oh, God. It happened so long ago I totally forgot about it. I didn’t think it was a big deal.’ It was downplayed. It’s a tough one, especially in a market like New York.”

Prepping for an Interview

How do boards deal with the new rules? The first step they 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. “You have to spend time putting forward all the reasons for rejecting him,” Davidowitz says. “You’re possibly going to face litigation in violation of the statute. It seems to me that it’s creating a pretty onerous obligation for buildings.”

Indeed, if a job applicant can prove that a board violated the Fair Chance Act, he or she can file a lawsuit seeking compensatory and punitive damages, as well as attorneys’ fees. The wronged applicant can also seek an injunction, forcing the unwilling board to hire him or her, after all.

Then again, there are some who are not bothered by the law at all. “It doesn’t affect us because, in fact, that’s what we were always doing,” says David Goodman, a senior management executive at Tudor Realty. “In other words, we don’t randomly run criminal background checks on everybody who applies. We only do it to somebody that we’ve made an offer to. It’s not that it’s unfair. It costs money. Why would I do it if you send me an application? Maybe you’re not appropriate for this, or you’re not the best, the most qualified candidate. Why would I waste everybody’s time and money running a check on you when I’m not going to hire you anyway?