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October 1st, 2014 | Sterling

All Fired Up About Criminal Record Checks

All Fired Up About Criminal Record Checks | SterlingBackcheck

New York enacted a new law that authorizes fire departments to expand the scope of their criminal record checks to include sex offender searches for volunteer firefighters. Originally the law did not allow for any discretion in the decision making process, meaning that anyone with a previous sex offense was automatically prohibited from becoming a volunteer firefighter.  This conflicted with the EEOC’s guidance, which requires that individual consideration is given to any individual with a reported criminal conviction. The law has since been amended to give fire companies the authority to use their judgment and make a final decision, but they can now take sex offense information into consideration.

Existing laws in New York already allowed fire departments to screen for arson convictions and many fire chiefs feel that adding sexual offenses to the search makes sense. Volunteer firefighters have access to the public in emergency situations and are trusted figures. Being in a position of authority also makes them easily trusted by children and other vulnerable individuals.

Although cases of firefighters assaulting victims are rare, they are not unheard of. Recently, a firefighter in Indianapolis was accused of allegedly sexually assaulting a paramedic whom he worked closely with. This incident didn’t occur on Emergency Medical Services property, nor did it involve an on-duty employee so none of the policies would apply. However, a case such as this demonstrates the potential for an individual to abuse their position of trust.

Background screening is an important part of the hiring process, but it is equally important for companies to define which crimes are important to consider and relevant to the position. The new bill enables fire departments to rule sexually-based offences as relevant to volunteer firefighter positions, but the decision must be in accordance with §752 and §753 of the Correction Law. This means that the previous criminal offences must demonstrate a direct relationship to the volunteer firefighter position or be serious enough in nature that it would pose an unreasonable risk to the public. It also means that the fire chief must consider each criminal offense on a case-by-case basis including the time elapsed since the offense, the age of the person at the time of the offense, and any explanations regarding rehabilitation or good conduct.

Although this law only applies to licensed positions, New York Correction Law Article 23-A applies to both licensure and employment in the private and public sector. These guidelines apply to all organizations and it benefits both the job applicants and the people you are seeking to protect, such as staff, customers and the company itself. As an employer, you need to screen for the right things and you want to ensure that your screening policy covers criminal offenses that are relevant to a position. For example, you don’t want to hire an accountant who has a history of fraud and embezzlement charges. And you don’t want to hire a convicted sex offender to teach music classes at a recreation center.

On the other side of the issue, you should consider the individual applicant in your policy and should not follow a blanket policy that prohibits anyone with a criminal record from gaining employment. You could be losing out on some really great applicants if you don’t hire them due to criminal offenses that are irrelevant. For example, a misdemeanor traffic offense for speeding from several years ago shouldn’t have any bearing when hiring an in-house sales representative.

A comprehensive and well-designed screening policy is one of the most important components of your background checking program because it dictates what and how information will be used. So put considerable thought into it as you create it. And review it regularly to ensure that it continues to comply with legislation and keep up with industry best practices.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.