May 2014 New York County Lawyer
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Vol. 8 Issue 21 | May 2014 | www.nycla.org New York COUNTY LAWYER The Beat of New York Law Employment Protections in New York for Individuals with Criminal Backgrounds against individuals with criminal records. By Jamie Sinclair, Esq. and Additionally, laws banning questions regard- Julieanne Yanez, Esq. ing criminal history on job applications, Edited by Stephen McQuade, Esq. informally called “Ban the Box” laws, are increasing in popularity. These laws require employers to remove questions about crimi- Statistics on Incarcerated Persons nal history from job applications and post- The United States leads the world in put- pone such inquiries until later stages of the ting people in prison. According to reports, hiring process. Currently 10 states, as well as in 2012, the United States boasted 760 51 municipalities, including New York City, prisoners per 100,000 people, as compared have such laws. to most European countries that have one- seventh that number per capita, leading Article 23-A of the New York some commentators to suggest that we are Correction Law becoming a “nation of criminals.” The total In New York State, an individual who has number of Americans under correctional been convicted of one or more offenses is supervision (i.e., prison, parole, etc.) is 7.1 afforded limited protection in the applica- million. Locally, in New York State, there tion for a license or employment. Article were 565,164 arrests in 2012; and in New all Americans have some sort of criminal behaviors and to associate with people who 23-A of the New York Correction Law pro- York County, there were 85,528 arrests in record including arrests that did not lead to do.” Having a job “enables individuals to con- hibits the denial of any license or application 2012. criminal convictions. The National Employ- tribute income to their families, which can for employment based on an applicant’s According to the United States Depart- ment Law Project estimates that about one- generate more personal support, stronger prior convictions. ment of Justice, approximately one-third of fourth of all Americans, or 65 million people, positive relationships, enhanced self-esteem, When considering a convicted individual’s has a criminal record that would show up on and improved mental health.” However, application for employment or licensure, a routine background check. survey results published by The National public agencies or private employers are INSIDE NY COUNTY LAWYER Institute for Justice suggest that between 60 required to consider the following eight stat- State Legislation to Curtail and 75 percent of ex-offenders are jobless up utory factors: (a) the public policy of New Employment Protections in New York for Employment Discrimination to a year after their release. York to encourage the licensure and employ- Individuals with Criminal Backgrounds . 1 The Bureau of Justice Assistance, an arm In order to encourage the reintegration of ment of persons previously convicted of one of the United States Department of Justice, criminal offenders into society and decrease or more criminal offenses; (b) the specific Emergency Medical Services as a reports that employment “refocuses individ- recidivism rates, a number of states, includ- duties and responsibilities related to the Behavior Modification Tool: A Multiple uals’ time and efforts on pro-social activities, ing New York, have passed laws banning dis- license or employment sought; (c) the bear- Rights Violation . 1 making them less likely to engage in riskier crimination by public and private employers { See Employment on page 3} For U .S . Employers, Immigration Law Compliance is Part of High-Stakes Recruitment Challenge . 2 Recent Decision Leaves Immigrant Emergency Medical Services as a Behavior Defendants with No Real Remedy . .2 Message from the President . 3 Modification Tool: A Multiple Rights Violation Message from the ing to hospital records, emergency room NYCLA Foundation . 3 By Nelson Mar, Esq. staff identified the following reasons for 2014 Attorneys’ Guide . 6 John’s four admissions to the emergency John* is an active 6-year-old boy. A year room: (1) hitting and kicking a school Speaking Tip . 6 ago, he relocated to the South Bronx along safety agent; (2) refusing to sit on the rug with his mother, Ms. Doe and older siblings and not listening; (3) being out of control; NYCLA Recent Events . 7 after an incident of domestic violence. Ms. and (4) hitting and kicking his teacher. NYCLA Upcoming Events . 8 Doe* enrolled John in kindergarten at a School officials did not provide Ms. community school not far from the pub- Doe any documents detailing the circum- NYCLA Library Notes . 9 lic housing complex where they lived. A stances that precipitated the need to call month after the start of the school year, emergency medical services for her son. Electronic Research Center Ms. Doe began receiving calls and reports On each occasion, the school staff person CLE Programs . 9 from school officials about John’s disrup- who accompanied John to the hospital NYCLA In The News . 11 tive behaviors. The calls initially described no further information about the incident. had little to no knowledge of the underly- John as acting out and not listening to Ms. Doe immediately rushed over to the ing incident. On two occasions when Ms. school officials but later calls involved hospital where she found John sitting Doe arrived at the school before John was more serious disruptive behaviors such as calmly in the pediatric unit of the hospital transported by emergency medical tech- John being physically aggressive. emergency room along with a school staff nicians, she was told that John had to go Index to Advertisers In late October 2012, Ms. Doe received a person. Only later through the hospital to the hospital despite her objections and JAMS . 4, 11 call from school officials. She was told that staff did Ms. Doe learn that school officials request to take her son home. she needed to come to the school immedi- called 911 because John allegedly kicked a John’s experience of being transported KLG . 6, 11 ately because school officials were sending school safety agent. to a hospital emergency room for his Collard & Roe . 8, 11 John to the hospital. Ms. Doe proceeded Then over the following two months, disruptive behaviors is neither new nor Law Office of Randy C . Botwinick . 9, 11 to the school as quickly as possible believ- school officials called 911 for emergency unique in New York City. As early as 2004, NAM . 11,. Back Cover ing her son was involved in some serious medical services on three additional occa- emergency room doctors and advocates accident. Upon arriving, she was told sions in response to John’s disruptive raised concerns about the practice. In by school officials that her son had been behaviors. In total, school officials sent one news article, officials from hospitals taken by ambulance to the local hospital John to the hospital emergency room four throughout the city complained that New emergency room but was provided with times within a two-month period. Accord- { See Emergency on page 5 } 2 • May 2014 The New York County Lawyer For U.S. Employers, Immigration Law Compliance is Part of High-Stakes Recruitment Challenge visa holders. According to court documents, available and the April 1 “filing season.” The By Shirley Tang, Esq. Infosys gained a competitive advantage by consensus among these professionals is how providing “invitation letters” to U.S. Con- difficult it is to fill jobs where talent is sorely This past fall, the Indian company Info- sular officials falsely describing the purpose needed for their businesses to excel. sys, one of the world’s premier technology of workers’ travel and by coaching workers One might think that with the unemploy- outsourcers, agreed to pay a $34 million fine on what not to say when questioned during ment level hovering above seven percent to the U.S. government. This was the larg- the interview process at the U.S. Embassy in recent years and at 6.6 percent in Janu- est civil settlement ever paid to the U.S. in abroad and at the U.S. port of entry. As ary 2014, it would be easy to recruit talent an immigration compliance case. The U.S. human resources professionals know, the domestically. But the statistics show what alleged that the company routinely used employment eligibility verification process, technology and other business executives short-stay B-1 business visas to bring skilled beginning with Form I-9 completion, would keep telling me: It is still hard to find the tech workers to the U.S. to fill jobs that bar the employment of any worker who right talent. A CareerBuilder.com survey should have gone to U.S. workers or to H-1B entered on a B-1 business visa. Thus, the fine last summer showed that 104,000 software took into account both the alleged visa fraud developer jobs were created in the previous and the failure to perform I-9 verification three years that have gone unfilled for at least and maintain records. 12 weeks. Almost 50,000 IT manager/net- The Infosys fine illustrates what is all too work administrator positions had also gone familiar to HR and recruitment profession- unfilled for at least 12 weeks. als: securing the right talent is crucial to a To be clear, the complexity of immigration business, but when it comes to cross-border laws are not the cause of these unfilled posi- Published for issues, the complex immigration processes, The Competitive Landscape tions. However, the business stakes of proper New York County Lawyers’ Association visa quotas, and restrictions and limita- As our economy becomes more global, corporate immigration processes and proce- 14 Vesey Street tions along with multi-agency bureaucracies and talent travels around the world to work dures may never have been higher.