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If an employee begins working for a few days, then the

Hi! If an...

Hi! If an employee begins working for a few days, then the background comes back failed due to a reason that doesn't qualify him/her hire-able, are they protected under ban the box because they have already started working on site? Or can we remove him/her and give him/her the 5 days to conduct their investigation?

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Yes - New York City

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

At will - Full time

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That's really all thank you!

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Answered in 4 minutes by:
10/19/2017
KLAW
KLAW, Lawyer
Category: Legal
Satisfied Customers: 2,375
Experience: I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
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Good afternoon. Is the job a state or federal contract job that requires a pass.
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Customer reply replied 9 months ago
State - NY

I can't do a phone call but I can answer online.

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Customer reply replied 9 months ago
okay - either way is fine
Customer reply replied 9 months ago
Do you think you'll have an answer soon?

Yes, I am typing it now.

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Customer reply replied 9 months ago
amazing!

Hello and welcome to Just Answer. No attorney-client relationship or privilege is formed by speaking to an expert on this site, the answers are for general information. By continuing, you confirm that you understand and agree to these terms.

The law in New York City is that an employer with at least four employees will be prohibited from making any inquiry into a job applicant’s criminal history until after a conditional offer of employment has been extended to that applicant. This prohibition substantially increases existing federal and state regulation (including the federal Fair Credit Reporting Act) concerning use of third-party vendors to run background checks.

Under the FCA, employers may not include a requirement that the applicant check a “box” on the employment application if they have been convicted of a crime or have a pending arrest, directly ask the applicant about criminal history, or search any publicly available sources of information for information about an applicant’s criminal background. You as an employer also may not include in a job description or posting that a criminal conviction could have an impact on an applicant’s chance of employment (unless otherwise required by law).

Even after making a conditional offer of employment, if you ran a criminal background check and decide to not hire based on that inquiry, the FCA requires the following additional notification procedures:

· Provide the applicant with a written copy of the inquiry (the NYC Commission on Human Rights will issue a format but has not done so yet)

· Provide the applicant with a copy of the above-referenced Article 23-A analysis (including supporting documentation and explanation of the employer’s decision) and

· Allow the applicant at least three business days to respond to the analysis by holding the position open during that time.

Article 23-A of the New York Correction Law prohibits employers from denying an applicant employment because the applicant was previously convicted of one or more criminal offenses. There are a few areas of employment where Article 23-A does not apply, such as job positions in any law enforcement agency. Otherwise, all private employers with ten employees or more are subject to this law.

The denial based upon the background check must be job related, and you must find that the criminal conviction will affect the job.

You must justify in writing your decision, and if you have found that the person lied on the application, then that is enough grounds to withdraw the job, even after they accept.

You are within your rights to not hire or terminate individuals who based on the questions you ask, has lied, omitted, or misrepresented themselves on an application or in an interview. We do, however, caution that when you are evaluating a person’s job application against information you obtain from a criminal background check, you must be sure that you have accurate and complete data. The information should not be incomplete or duplicative and you should only be considering disposition information that indicates the crime for which the person was convicted, not arrest charge(s), arraignment charges, or charges that were satisfied or covered by the charge the person pled guilty to.

I hope this helps. Please let me know if you have more questions.

It was a pleasure assisting you today, and I would appreciate if you would rate my service, so I will receive credit and payment for my work. After you rate the question you can

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Customer reply replied 9 months ago
Okay - we have someone with an active case, for retail theft. She has been working for 5 days. and we were unaware she started working as she is working at one of our clients. If its an active case, not a conviction, can we take her off the assignment if this crime is a risk to our retail client?

You could, but inly based upon the fact that you asked her if she has ever been charged, remember charged is not the same under the law, and this background law, as a conviction. As I stated above, lying is always a grounds for withdrawing the job.

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Customer reply replied 9 months ago
But I thought we cannot ask if they've ever been convicted of a crime?

You can't directly ask that question, but you could ask other questions that reveal the pending charge. For example, details questions about the past employment and what happened when they left. The law has put employers in a bind, and you cannot ask anything direct about their history, it unfortunately has to be found out from other questions.

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To guard against soliciting or considering non-conviction information, employers may frame inquiries by using the following language after a conditional offer is made:

Have you ever been convicted of a misdemeanor or felony? Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.

If an employer hires an applicant after learning about her or his conviction history, the FCA does not require it to do anything more. An employer that wants to withdraw its conditional offer of employment, however, must first consider the Article 23-A factors. If, after doing so, an employer still wants to withdraw its conditional offer, it must follow the Fair Chance Process.

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Customer reply replied 9 months ago
then back to my original question - can I end her assignment if the case is active, not a conviction and she didn't lie because we didn't ask? It's a retail company and the charge is retail theft - its cause for concern.
It would depend on how you found out about the charge.
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Customer reply replied 9 months ago
From our background check - we use sterling. Which she authorized us to do before she started.
If she was not convicted then you cannot withdraw the offer because she may sue you based upon the law.
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Customer reply replied 9 months ago
thank you
You’re welcome
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