The situation. Your building’s super is retiring, and you’re looking to hire a new one. Reading résumés and referrals will tell you only so much. Can you perform a criminal background check of prospective candidates before offering them the job?
The screening process. The 2015 Fair Chance Act prohibits employers, including co-op and condo boards, from inquiring about an applicant’s criminal record until after a conditional job offer has been made. Typically, after the job offer, a building’s managing agent will do the screening by verifying the candidate’s employment history and doing motor vehicle and criminal records checks. “If you find out somebody does have a criminal record, that shouldn’t automatically rule them out,” says Ken Jacobs, a partner at the law fim Smith Buss & Jacobs. “You have to evaluate whether that record is actually relevant to them doing the job, especially if they otherwise seem to be a good fit.”
Ask the right questions. To do that, boards need to address the issue with the candidate directly. “You’ll want to ask them how serious the conviction was, how much time has passed, and whether they can present any evidence about their rehabilitation, including treatment programs, volunteer work and any jobs they’ve held since,” Jacobs says. “New York’s public policy encourages the employment of persons with criminal records. Therefore you need to weigh all these factors carefully – as well as their qualifications – when you make your decision.”
Changing course. A job offer can be withdrawn if the board feels there is a direct relationship between the conviction and the candidate’s ability to do the job, or if granting employment would pose an unreasonable risk to the building or its residents. If the offer is withdrawn, the employer must explain why and give the applicant at least three business days to respond. An applicant may still sue or file a discrimination complaint with the Human Rights Commission, Jacobs notes, but if the board clearly documents its reasons for rescinding the job offer and doesn’t have a history of denying employment to anyone with a criminal record, it is more likely to prevail.