Employment Searches Guidance

Employment Searches Guidance

Legal Issues Surrounding Employment Applications

SUNY offices receive thousands of employment applications each year. Recent changes in the law and its interpretation require guidance on legal requirements for some aspects of employment applications and searches for employees. The following guidance, prepared by the Office of General Counsel and issued via a memorandum on February 14, 2013, covers the following areas related to employment searches and is applicable to classified, unclassified, and student applicants.

I. Non-Discrimination Language:

Each application, or a document attached to the application, should contain language indicating the college’s policy of non-discrimination. The following paragraphs represent one way of meeting requirements under federal and state and law:

Pursuant to University policy, the University is committed to fostering a diverse community of outstanding faculty, staff, and students, as well as ensuring equal educational opportunity, employment, and access to services, programs, and activities, without regard to an individual's race, color, national origin, religion, creed, age, disability, sex, gender identity, sexual orientation, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, or criminal conviction. Employees, students, applicants or other members of the University community (including but not limited to vendors, visitors, and guests) may not be subjected to harassment that is prohibited by law, or treated adversely or retaliated against based upon a protected characteristic.

The University’s policy is in accordance with federal and state laws and regulations prohibiting discrimination and harassment. These laws include the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act of 1964 as Amended by the Equal Employment Opportunity Act of 1972, and the New York State Human Rights Law. These laws prohibit discrimination and harassment, including sexual harassment and sexual violence.

Inquiries regarding the application of Title IX and other laws, regulations and policies prohibiting discrimination may be directed to _____________. Inquiries may also be directed to the United States Department of Education’s Office for Civil Rights, 32 Old Slip 26th Floor, New York, NY 10005-2500; Tel. (646) 428-3800; Email OCR.NewYork@ed.gov.

Of note, in preparation for this guidance (issued via a memorandum on February 14, 2013), Counsel’s Office took a fresh look at the precise list of protected classes (different SUNY campuses had different lists), and the list of protected groups above reflects a current analysis of those groups protected by federal and/or state law.

II. Prior Convictions and Pending Arrests:

Pursuant to federal and state law, campuses may only make very limited use of prior convictions or pending arrests when making employment decisions. Sections 296.15 and 296.16 of New York’s Human Rights Law set out the proscriptions against unlawful inquiries and employment actions based on prior convictions. Under § 296.16, it is unlawful for any person or agency, including the State, to make any inquiry about any arrest or criminal accusation of an individual if that arrest or accusation (1) is not pending, (2) has been resolved in favor of the accused, (3) has been resolved by a youthful offender adjudication, or (4) has resulted in a sealed conviction. A college’s questions on its employment applications must reflect this paradigm (see example below).

Section 296.15 makes it unlawful to deny any employment or license to any person by reason of the individual’s having been convicted of a prior criminal offense, or by reason of finding a lack of “good moral character” based on such convictions, if such denial is in violation of Article 23-A of the Correction Law. For its part, Article 23-A provides that employment or licensure shall be denied only if there is a “direct relationship” between the previous criminal offense(s) and the specific employment or license sought or held, or if employment or licensure of the individual would involve “an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Section 753 of Article 23-A goes on to list eight factors used to determine if there is a direct relationship or unreasonable risk. According to the Court of Appeals, each of the factors must be considered.

Sample Language

Compliance with this legislative scheme requires very specific language. Applicants should be informed—whether in the documents attached to the employment application, or directly on the application itself—of the possible consequences of completing the employment application. This will give applicants actual, or at least constructive, notice, and they may feel less apprehension in disclosing relevant convictions and arrests. For example:

  • Answering “YES” to the question about whether there is a prior felony conviction may or may not preclude employment, depending on the nature of the criminal offense, its relationship to the position sought, and other factors that must be considered before employment may be lawfully denied based on a prior conviction.
  • Failure to disclose a prior conviction may result in denial of employment or subsequent termination of employment based on falsification of the employment application.

Actual questions posed to applicants should be carefully worded and followed by clear instructions that note four situations under which applicants should answer “NO”:

  1. Do you have an arrest or criminal accusation currently pending against you? If “YES,” please describe. (If a prior arrest or criminal accusation resulted in a conviction, you may need to disclose this information in response to the next question.)
  2. Have you even been convicted of a criminal offense (felony, misdemeanor, or violation)? If “YES,” please describe.

Note: You should answer “NO” if:

  1. Your conviction (felony, misdemeanor, or violation) was sealed by a court, OR
  2. The criminal action or proceeding was terminated in your favor (for example: the action was dismissed either at the initial stage or on appeal; you received an Adjournment in Contemplation of Dismissal and the adjournment period has elapsed; you were acquitted), OR
  3. The proceeding on the criminal offense resulted in a youthful offender adjudication or juvenile delinquency finding which has been sealed/expunged pursuant to the Family Court Act, OR
  4. After completing a treatment program, your plea to a felony or a misdemeanor was withdrawn and you were resentenced to a violation which was sealed by the court, or the completion of the program resulted in a dismissal of all charges by the court.

Questions about your status may be directed (anonymously) to the Office of Human Resources.

Procedural Safeguards

Compliance also requires procedural safeguards. Disclosures of past conviction or present arrest that do not disqualify an applicant have the potential to be improperly considered, actively or subconsciously, by search committee members. Campus policy, therefore, must prevent search committee members from learning such inappropriate information. Campuses may require that applicants disclose past convictions or pending arrests, but must not allow that information to be considered by the search committee that is determining substantive merit for a position. Rather, the campus must develop a process wherein information about past conviction(s) or pending arrest(s) is available only to an employee in Human Resources, who will be “walled-off” from the search committee for this purpose.

When an applicant discloses a past conviction or pending arrest, a Human Resources employee, independent of that search committee, should review the information to determine if that conviction or arrest is relevant to the position sought. If the information is relevant and disqualifies the applicant, the Human Resources employee will then remove the applicant from the pool. If the information is irrelevant and/or does not disqualify the applicant, then the Human Resources employee will allow the applicant to remain in the search pool with absolutely no mention of the applicant’s disclosure to committee members.

III. Use of the Internet and Social Media in Employee Searches:

Although the Internet, and social media in particular, may provide an employer with information that could qualify or disqualify an applicant, employers may also learn inappropriate information through these means. Such information includes membership in protected classes not otherwise disclosed on the application, status as an individual with a disability, political or religious views, or membership in organizations. This information is irrelevant to an applicant’s candidacy—and often impermissible to consider—but some search committee members may be tempted to use it in their decisions.

If a college would like to use information gleaned from the Internet and social media in the hiring process, such information should be gathered by an appropriate Human Resources employee or Affirmative Action officer who is “walled-off” from the search committee for this purpose. That employee may conduct relevant searches to determine if any publicly-available information is relevant to the applicant and would disqualify him or her from the position, but must not attempt to gain access to password-protected or otherwise secure information, or attempt to “friend” an applicant so as to gain access to private information. Care should be taken to determine that the information available is actually about the applicant (and not about another person with a similar name or identifying information) and that it is not false, misleading, defamatory, or otherwise not appropriate. Use of RateMyProfessor.com and other anonymous rating and comment websites is cautioned against, as anonymous ratings may reflect underlying biases and are not as reliable as verifiable, in-class student ratings.

Faculty and staff on search committees should call references provided by applicants, verify all past employment, and seek explanation for unexplained gaps. Search committee members may review faculty candidates’ articles and papers that are published online, and may also relate their personal or professional experiences with candidates. Search committee members attending conferences or gatherings with potential candidates may attend candidates’ presentations or speak with them.

By avoiding inappropriate access to applicants’ information, even information publicly available on the Internet or social media, search committee members can better concentrate on relevant information, including experience, ability and past performance.

Note: Office of General Counsel who prepared this guidance: Joseph Storch, Jim Jarvis, Andrea Stagg, Seth Gilbertson, Will Versfelt.

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The information contained on the SUNY Compliance website is for general campus guidance only and is not intended, nor can be relied upon, as legal advice or the imposition on SUNY campuses of specific policies or requirements. The site is intended to be an informational-only clearinghouse for some of the laws, rules, and regulations that may impact the State University of New York’s campuses. Additionally, given the rapid, changing nature of laws, rules and regulations, there may be delays or omissions contained on this site which therefore cannot be relied upon as complete. For complete compliance information, consult your campus compliance officials. For legal advice, consult your lawyer.

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