The article, “Employee Background Checks: The New Compliance Arena” (NYLJ, Outside Counsel, March 16), is essentially an advertisement for the commercial background check company whose founder co-wrote it. It promotes a number of misconceptions concerning individuals with conviction histories in the workplace, and insults them and their advocates in the process.
The first, and by far the most troubling, is the implication that hiring an individual with a conviction history will cause an employer to create an OSHA-violating workplace replete with “recognized hazards.” The simple fact of having a conviction history—and, as the article points out, millions of Americans now have such histories—does not make a person a hazard, and hiring a person with a conviction history does not create a hazardous workplace. Conflating the fact of a conviction history with the notion of hazard plays into myths and stereotypes long disproved by research and plain old experience.
The article then goes on to state that legal enforcement of individuals’ rights under the federal Fair Credit Reporting Act and state laws has spawned a “cottage industry” in the plaintiffs’ bar and a “rising tide of class actions.” But this belies the fact that unfortunately, individuals are routinely victimized by sloppy, inaccurate background checks and lose jobs, licenses, housing and credit as a result, and that they are as entitled to have their rights vindicated as the next person.
Finally, the article intimates that both the Fair Credit Reporting Act and the New York City Fair Chance Act are—perhaps intentionally—full of legal potholes for the unwary, and that enforcement agencies will look to zing employers who unintentionally step in these potholes. The writers then make a pitch for their services. The laws, however, were not drafted to trip people up, but instead—the Fair Chance Act in particular—combat the very real problem that individuals with conviction histories face, which is extreme discrimination in the job search.
Stereotypes such as those fostered by this article lead a good number of employers to disregard applications from individuals with conviction histories, in violation of existing law. The Fair Chance Act was passed to ensure that individuals be allowed to compete for work on their merits, not be kicked to the curb. Surely fair treatment of all New Yorkers, including the estimated one in three who have had contact with the criminal justice system, is something we can and should support.
The writer is general counsel
for the Community Service Society of New York