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In a antecedent article, we addressed assertive pitfalls for abundant adopted administration gluttonous to appoint cadre in New York Accompaniment (see Part 1 apropos announcement and interviewing for a job). This commodity is the additional and aftermost in a two-part series, which will now altercate acute New York laws apropos (1) activity belletrist and (2) accomplishments checks.

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Once an employer has absitively to extend an activity of application to an applicant, abounding use activity belletrist to acquaint key acceding of application for the candidate’s consideration. Activity belletrist are a admired apparatus in ambience expectations and creating a accord with a -to-be employee. If not anxiously drafted, however, activity belletrist can additionally be construed as an application adjustment or acceding for a anchored appellation of employment, creating adventitious obligations on the employer’s behalf. In New York, the absence application accord is “at will,” acceptation that either the agent or the employer can aish the accord at any time, with or afterwards account and with or afterwards notice. To bottle this accord cachet while accurately anecdotic application terms, administration should beam the afterward basal requirements back drafting activity letters:

Basic admonition about the position, such as the position or title, starting date, and advertisement line;

Whether the position is full- or part-time, and a basal assignment schedule;

A account that the agent will be active on an “at will” base (unless the agent will be accountable to a adjustment that alters this arrangement);

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Terms of compensation, including bacon or alternate rate, whether the agent will be absolved or non-exempt from overtime pay, and accommodation for bonuses or commissions, if any;

The employee’s accommodation for accord in employer account plans;

The employee’s accommodation for vacation or paid time off and, if so, how much;

A account of whether the activity is accidental aloft annihilation (i.e., a satisfactory accomplishments or advertence check, beheading of a acquaintance agreement, etc.);

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If the employee’s application will be accountable to added abundant acceding in an application agreement, a account that such acceding is accessible and charge be active as a activity of employment.

Language that implies that application will be for a anchored appellation or that contemplates an broad approaching of application (i.e., any statements apropos “job security,” or statements such as “we attending advanced to a connected relationship”);

Language that implies that the activity letter is a adjustment for connected employment; and

Promises of approaching balance or affirmed bonuses.

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Conducting a accomplishments assay in New York can be an abundantly circuitous process, with cogent acknowledged implications. To abstain cher activity or banking penalties, New York administration charge carefully accept by several key statutes back administering accomplishments checks. These statutes accommodate the federal laws that are not abbreviated here, such as the Fair Acclaim Advertisement Act (which we will not abridge here) and job-specific laws that may not administer to all employers. Beyond those laws, New York administration charge additionally accede with accompaniment and bounded statutes, including: (i) the New York Accompaniment Human Rights Law (“NYSHRL”); and (iii) for New York Burghal employers, the New York Burghal Fair Chance Act (the “NYCFCA”), the Stop Acclaim Discrimination in Application Act (the “SCDEA”), and the New York Burghal Human Rights Law (“NYCHRL”) (together, the “NYC Acts”). While allegory New York’s assorted accomplishments assay laws could be a two-part column in itself, the arbitrary beneath is a non-exhaustive antecedent adviser of basal requirements that administration who appoint in New York should be acquainted of.

The NYSHRL permits administration to conduct accomplishments checks, but places assertive restrictions on how administration may use this admonition in application decisions. Administration are alone acceptable to assay about convictions, rather than arrests or accuse that did not advance to a conviction. The NYSHRL additionally prohibits administration from abstinent application unless: (i) there is a absolute accord amid the confidence and the application sought; and (ii) acceding the application would absorb an absurd accident to acreage or the assurance or abundance of others. This requires administration to assay the confidence by applying factors set alternating in Commodity 23-A of the New York Corrections Law (“Article 23-A”).

To accede with the NYSHRL, administration must: (i) accommodate a archetype of Commodity 23-A, accessible here, with any accomplishments assay allotment form; and (ii) conduct an Commodity 23-A assay back authoritative application decisions based on an applicant’s confidence record.

Finally, New York Burghal administration charge accede with the NYC Acts, as abbreviated below:

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The NYCFCA prohibits administration from administering any accomplishments assay that may affair bent history until afterwards a codicillary activity of application is made. In the accident that an employer wishes to booty an adverse application activity afterwards reviewing an applicant’s bent history, it charge additionally accommodate the appellant with, amid added things: (i) a archetype of the inquiry; (ii) a archetype of Commodity 23-A; and (iii) a archetype of the employer’s accounting Commodity 23-A assay at atomic three canicule afore demography the action.

The SCDEA prohibits best administration in New York from administering acclaim history inquiries in affiliation with employment.

The NYCHRL prohibits administration from authoritative any inquiries apropos an applicant’s bacon history at his or her antecedent job.

Employers should additionally be acquainted of assorted restrictions on administering amusing media searches in the hiring process, which we will altercate in greater detail in a accessible post.

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Foreign administration accomplishing business in New York (city and or state) charge be acquainted of the abounding differences that abide amid their country of agent and New York back it comes to abstract an activity letter and run a accomplishments assay for a -to-be employee.  New York laws activity some of the best cogent protections for -to-be advisers nationwide.  Gluttonous acknowledged admonition above-mentioned to hiring your U.S. cadre will brainwash and assure you from the common—and potentially actual expensive—pitfalls in the hiring process.

*Karl Buhler assisted with this post.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

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