New York's Cooperative and Condominium Community

Habitat Magazine July/August 2020 free digital issue

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ARCHIVE ARTICLE

Something Old, Discovered

Life jogs along at a mid-sized co-op with lots of families and kids. A new board was elected just a few months ago and has switched over to a new managing agent. One of her first tasks is to get familiar with the dozen or so staff members and their files – a pro forma thing, no big deal. But then she notices no reference letters in those files – in fact, nothing much except the usual tax and insurance documents and the workers’ job-application forms. Hmm … can that be right?

The agent suggests to the board that since no background checks had been done, it might be prudent to do them now. But the board grows reluctant, especially when it learns that to gather certain material, like a credit check, an employee’s permission is needed. The board doesn’t want to create bad feelings, or give the impression it doesn’t trust the staff. And anyway, it’s a union building, and background checks on existing staff aren’t allowed.

Did one of the porters have a criminal record? Probably not. But maybe. And that well-liked, grandfatherly super? He probably wasn’t a sex offender back in Ohio, and probably has no history of walking away from maxed-out credit cards, and probably isn’t licensed to carry a gun, or….

That’s just it, you see? That board – and that building’s families and kids – will never know. Until, perhaps, it’s too late.

Background checks “should be a common thing,” believes veteran real estate attorney Arthur I. Weinstein, a founder and the vice president of the Council of New York Cooperatives & Condominiums, whose most recent project was devising a suggested code of ethics for board members. “Each co-op and condo employee is in a position of absolute trust in regard to residents. They have access to apartments, to packages, they’re in frequent contact with young children.” Echoes Josh Salon, vice president of Salon Realty: “It would be crazy for any management company not to do it. You run background checks on prospective tenants, so not to run one for an employee is just insane. It costs $15 – next to nothing. For a professional manager not to do it is the equivalent of malpractice.”

The Service Employees International Union (SEIU), Local 32BJ, which represents more than 85,000 doormen, porters, security guards, superintendents, and other such workers in the tri-state area plus Pennsylvania, Virginia, and Washington, D.C., allows security background checks at any time for employees of unionized commercial buildings. For residential buildings, however, such checks are only allowed “on change of ownership or conversion of the status of a building or employee,” according to the 2006-2010 contact between the local and the Realty Advisory Board on Labor Relations (RAB). So, basically, an office desk or chair gets a higher level of security than your kid does.

For buildings, a change in status generally means new ownership or conversion from rental to co-op or condo. For employees, change in status means “promotion from handyman or porter to super,” says 32BJ spokesperson Matthew Nerzig. Lateral moves such as reassignment from one building in a complex to another don’t count. RAB president James Berg takes the view that employee change-of-status “could mean in certain circumstances changing to a more sensitive job, such as moving from back staff to front staff, or taking on more responsibility.”

Does hiring a new management company constitute a change in a building’s status? Not according to the union, and the RAB isn’t sure. “Most of the time,” says Berg, “the union is cooperative in working these things out.” Also keep in mind, he adds, that, “Sometimes when you say a check hasn’t been done, it has been done. Boards change, paperwork and files get moved around, there’s a lot of that.”

Whatever one’s read on the phrase “conversion of status,” the contract is clear on other things: employers can’t conduct background checks on a disciplinary or retaliatory basis. Any disciplinary action afterward has to be for just cause. And the employer has to pick up the cost of background checks. (Security guards have a separate agreement. They’re not subject to checks any time if they work directly for a co-op or condo but are if they’re employees of a commercial security company and subcontracted to patrol your building or complex.)

The term “background security check” itself is vague, or perhaps flexible. It used to be that you just called the former employer about a prospective hire or asked around in the industry. But in recent times, notes Weinstein, “a lot of previous employers are reluctant to give out comments” for fear of litigation. “Their concern is that they don’t want to be sued for slander or anything like that.”

While it’s still standard to check out employer references to verify dates of employment, what most people mean by “background check” is some combination of criminal, credit, and driving-record review.

“There are a lot of different online services that offer this,” says Salon. “You have to prove to these companies that you’re a legitimate business, and people have to sign a form authorizing them to check their credit.” At sites like Sentrylink.com, Intelius.com and dozens of others, “You prove your credentials, they sign you up online, and five minutes later, you’re getting everything you’d ever want to know.”

Or not – these companies aren’t infallible. Generally combining public-record databases with those of private data-collection companies, online investigative sites may update their aggregated info as often as several times a week – or as seldom as a few times a year.

You also might wind up paying for government-record searches you can do yourself for free. New York State, for instance, has a free sex-offender registry available to anyone at the Division of Criminal Justice Services site (http://www.criminaljustice.state.ny.us/nsor/). On the other hand, your prospective hire might have moved here from another state, and while you could do manual searches of each state’s database, sites like NationalAlertRegistry.com can search them all at once for a fee.

A word of caution, however, from the nonprofit consumer-advocacy group Privacy Rights Clearinghouse (privacyrights.org): “In-depth background checks could unearth information that is irrelevant, taken out of context, or just plain wrong.”

That’s one reason to have an experienced management company do such investigations, rather than doing it yourself. In addition, privacy laws are both strict and complicated. Some parts of a background check, for instance, fall under the federal Fair Credit Reporting Act, which states that you can’t legally search for bankruptcies older than ten years, nor for civil suits and judgments, records of arrest, or paid tax liens, among other things, older than seven years. And, notes Weinstein, “You may not discriminate for any handicap or medical condition” that a background check might uncover.

As for criminal convictions, your search can be as long as the arm of the law, subject to particular state regulations. Still, as Salon notes, “If it was many years ago and the person had an explanation, I feel his references at that point are more telling than an arrest when he was 20 years old. You’ve got to take it on a case by case basis,” he cautions. “People make mistakes, and you don’t want to give up a terrific employee because of something from years ago.”

But sometimes you do. “One thing we do with employees is a Google search,” he says. “It’s amazing what’s out there – stuff you wouldn’t normally get in a credit check or normal background check.” Such as? “We had a commercial space for rent and an Italian shoe store had applied. We found an article in Italian, got it translated, and found that the prospective tenant had been arrested more than once for fraud! That wouldn’t show up on a U.S. credit report.” Could it have been someone else with the same name? “No, we looked into it some more,” Salon says. “It was the same guy. Perfectly legitimate. We were shocked!”

Indeed, CareerBuilder.com found that in its 2006 survey of over 1,150 hiring managers 25 percent used Google or other search engines to screen applicants – and 10 percent checked social-networking sites such as Facebook or MySpace.

None of this, however, addresses what happens if you have legitimate concerns about an extant employee, and do a background check that uncovers something troubling – or even horrible.

“That’s a great question,” says Weinstein sadly. “I don’t know the answer. It’s one thing as a condition of employment to require a check; it’s another to fire somebody over something old newly discovered.”

And in a union residential co-op or condo, you can’t even do a background check on an existing employee, unless he or she is getting a promotion.

“The easiest way to solve this problem is to see to it that when employees are hired that appropriate background checks are done,” says Berg. “That way when you put somebody on, you can be confident that their background is secure.”

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