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Harris Beach LLC

Use Care When Making Hiring Decisions Based On Criminal Background
Applicant background checks can be a valuable tool to help ensure a qualified workforce. Background checks that reveal criminal history can be especially useful when an open position involves some level of trust or frequent contact with customers or clients. Criminal background checks can also help guard employers against negligent hiring claims by co-workers or customers of the organization with whom an employee will have personal contact. Despite the advantages of investigating the criminal history of applicants, New York law severely restricts the ability of employers to rely on this information when making employment decisions.

Certain New York employers are required to perform detailed background checks and deny employment to individuals convicted of specified offenses. For example, regulations issued by the New York State Department of Health require that residential healthcare facilities perform criminal history checks for prospective employees who apply for positions that provide direct care or supervision to patients. These regulations prohibit covered employers from hiring or utilizing perspective employees if a criminal background check reveals a conviction for certain enumerated crimes. For employers covered by these and similar rules, there is no discretion in whether to hire an applicant who has been convicted for one of the specified felonies. For the majority of employers in New York, however, there are no such mandates. Rather, it is the employer’s choice whether to conduct criminal history checks and how to use them. When exercising this choice, employers should take the measures outlined below to avoid missteps that can result in liability for unlawful discrimination.

One of the most common mistakes made by employers is asking applicants about their arrest records. It is generally unlawful for an employer to make an inquiry about or to take adverse action based upon any past arrests or criminal accusations that did not result in a conviction. On the other hand, employers are permitted to ask applicants about criminal convictions. Making hiring decisions based on an applicant’s criminal conviction record, however, requires a careful analysis because New York law limits the types of convictions on which employers may rely when making adverse employment decisions.

The New York statutory law makes it unlawful for employers to deny employment to any person by reason of that individual’s conviction unless: there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought, or granting the employment position to the applicant would involve an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public. Unless one of these two exceptions apply, a New York employer generally commits an unlawful discriminatory practice by denying employment to an applicant based upon a criminal offense, no matter how serious it may seem to the employer. New York law also provides specific guidance in applying these two exceptions. First, it is the public policy of New York State to encourage the employment of people who have been convicted of criminal offenses. When employers make employment decisions based on one or more criminal convictions, they are required by law to consider this public policy as well as each of the following factors:

the specific duties and responsibilities of the employment sought;
the bearing, if any, that the criminal offense for which the person was previously convicted will have on his or her fitness or ability to perform those duties and responsibilities;
the time that has elapsed since the occurrence of the criminal offense;
the age of the person at the time of the criminal offense;
the seriousness of the offense;
any information produced by the person, or produced on his or her behalf, regarding his or her rehabilitation and good conduct;
and the legitimate interest of private employers in protecting property, safety and welfare of specific individuals or the general public.
In addition to these factors, if an employer is put on notice that an applicant has been issued a “certificate of relief from disabilities” or a “certificate of good conduct,” the employer must give due consideration to this fact because these certificates create a presumption that the applicant has been rehabilitated with respect to the criminal offense specified in the certificate. This does not mean that an employer must hire each applicant who produces such a certificate, but the existence of the certificate must be considered. Finally, upon request of an applicant with a conviction record who has been denied an applied-for position, New York employers are required to provide a written statement setting forth the reasons for such denial.

When reviewing cases dealing with these limits on the use of conviction records, New York courts have generally taken a reasonable position. At least one court has held that the same public policy that prohibits discrimination in hiring on the basis of a criminal record also prohibits discrimination in terminating current employees on the same basis. In another case, a New York Appellate Court upheld a determination that an applicant for a firefighter position was unqualified based on his conviction for drunken driving since allowing the applicant to hold this position would have involved an unreasonable risk to property and to the safety and welfare of the general public.

Another decision held that no unlawful discrimination on the basis of criminal conviction existed where an attorney who was employed by a college as a business ethics teacher was discharged after a conviction for stealing money from a client. The court held that there was a direct relationship between the employment and the criminal offense committed by this employee.

The first step in complying with the criminal history rules is to understand that each situation must be analyzed on its own facts based on the specific employment sought and the criminal offense at issue. Next, employers should utilize the factors listed above in order to make an educated decision on whether one of the exceptions allowing discrimination based on conviction history applies. In the event that employers request information about convictions on application forms, it is advisable to insert a disclaimer in the form stating that a conviction will not automatically disqualify applicants from employment.

11-14-2006

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Graydon Head & Ritchey LLP

Graydon Head & Ritchey LLP Announces New Associate Attorneys
Graydon Head & Ritchey LLP announces the addition of Jeffrey B. Allison, Richard T. Farr, Joseph E. La Rue and Shaun B. Patsy as Associate attorneys.

Allison joins the Firm’s Commercial Litigation & Dispute Resolution Department. He earned his J.D. in 2006 from the University of Cincinnati College of Law and his B.A. in Economics from the University of Cincinnati in 2002.

Farr joins GH&R’s Construction Industry Group and practices in the Commercial Litigation and Dispute Resolution Department. He earned his J.D. from Salmon P. Chase College of Law at Northern Kentucky University in 2006 and his B.S. in Fire and Safety Engineering from the University of Cincinnati in 1998. Prior to joining the Firm, Farr was a Contracts Manager and the Director of Safety for a construction company.

La Rue joins the Firm’s Commercial Litigation and Dispute Resolution Department. La Rue received his J.D. from the University of Notre Dame Law School in 2006 and a Bachelor of Theology & Bachelor of Biblical Literature from Ozark Christian College in 1992.

Patsy joins GH&R in the Business and Finance Department. He is a 2006 graduate of The Ohio State University Moritz College of Law where he earned his J.D. Patsy also earned his MBA from The Ohio State University Fisher College of Business in 2005 and B.S. in Economics and Psychology from Vanderbilt University in 2002.

Graydon Head & Ritchey LLP attorneys serve clients in a variety of industries with particular experience with business clients in banking & financial, commercial real estate, media, communications & information, construction, health & elder care, manufacturing, distribution & technology. The Firm provides personal client services to many local business owners and their executives and families in the estate planning and administration area. Graydon Head & Ritchey was recognized for its innovative approach to quality improvement as the first recipient of the Customer Focus Award from the Cincinnati USA Regional Chamber.

11-14-2006

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Foley Hoag LLP

Peter Rosenblum to Speak at Practising Law Institute's Investment Adviser Seminar
Peter Rosenblum will speak at a program sponsored by the Practising Law Institute on November 17, 2006 called The ABCs of Investment Adviser Regulation. Practising Law Institute is a non-profit continuing legal education organization chartered by the Regents of the University of the State of New York. The program is designed to provide attendees with a solid foundation in the regulatory regime applying to investment advisers. This all day event will feature various law practitioners and regulators from all over the east coast.

Peter Rosenblum is actively involved in Foley Hoag's corporate and corporate finance practices, with an emphasis on public and private offerings of debt and equity, mergers and acquisitions, joint ventures and venture capital. He counsels a broad range of clients in diverse industries concerning business and regulatory matters, financing strategies and structuring of corporate transactions. Mr. Rosenblum has been ranked in the publication "The Best Lawyers in America" (1997-2007) and by "Chambers USA: America's Leading Lawyers For Business" as one of Massachusetts' leading private equity and corporate/M&A lawyers.

Foley Hoag provides comprehensive legal services to clients throughout the United States and around the world. We serve a wide range of industries including biopharma, energy and utilities, financial services, manufacturing, and technology. With 250 lawyers located in Boston and Washington, D.C. we provide creative solutions and results-oriented advice in the areas of bankruptcy, restructuring and workouts; corporate finance, mergers and acquisitions, and IPOs; labor and employment; litigation; environmental issues and land use; government strategies; intellectual property; tax, trusts and estates; and white collar and business crimes. As a member of Lex Mundi, the global network of independent law firms, we ensure that our clients have access to high-quality legal advice regardless of how far their businesses take them.

11-14-2006

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Barnes & Thornburg LLP

Democratic Congressional Chief Joins Firm's Federal Relations Group
Richard R. Boykin, Chief of Staff for U.S. Rep. Danny K. Davis (D-IL), will join Barnes & Thornburg LLP in early December as a partner. He will concentrate in the representation of clients from the Midwest before the U.S. Congress and units of local and state government, with emphasis on businesses from the Chicago and Northwest Indiana region.

Boykin's addition further enhances the firm's bipartisan Federal Relations Group at a time when the Democratic Party has taken control of both houses of Congress. Boykin, 38, brings 10 years of experience in the public sector, having worked for Rep. Davis as his Chief of Staff and political advisor. Before that, he worked with former Illinois U.S. Sen. Carol Moseley Braun and U.S. Rep. Bobby L. Rush (D-IL). He has served as Chief Liaison for the State of the African American Male Initiative, a program of the Congressional Black Caucus.

"We are very pleased Richard has chosen to join our firm," said Alan A. Levin, firmwide managing partner. "The depth and breadth of his professional experience before Congress, federal agencies and units of government in Illinois provides a tremendous boost to our bipartisan lobbying representation of clients. His knowledge of national and Chicago politics is another significant asset to clients."

Boykin joins the firm’s bipartisan Federal Relations Group which includes another former senior congressional aide. Edward Ayoob, an attorney in the firm's Washington, D.C., office, previously served as Legislative Counsel to incoming Senate Majority Leader Harry Reid (D-Nev.). Also, Bill Moreau, an attorney in the Indianapolis office, was Chief of Staff to U.S. Senator Evan Bayh (D-IN) when he was Indiana’s Governor.

The firm's Federal Relations Group represents clients before the U.S. Congress and the Executive Branch on a broad range of issues. Boykin will concentrate his practice in lobbying, offering a range of legislative and executive representation to corporations, trade associations, municipalities and nonprofit organizations, with matters before units of government in Washington, D.C., Illinois and Northwest Indiana.

"I am excited about joining the Barnes & Thornburg team and look forward to making significant contributions in government services and other areas of legal practice," said Boykin, who focused on healthcare, telecommunications, energy and utility policy; and hospital, higher education and nonprofit appropriations while serving Rep. Davis.

Boykin is a board member of the Chicago Lighthouse for the Blind, the Dr. Martin Luther King Dream Classic, Reach Out and Read Greater Chicago Coalition and the Illinois State Society. He also holds memberships in the John C. Stennis Fellowship Program, Chicago Bar Association, Public Interest Law Organization, American Bar Association, the National Association for the Advancement of Colored People and Rock of Ages Baptist Church.

Boykin is the recipient of many awards, including the MLK Dream Classic Award, National Community Health Center Service Award, the John C. Stennis Leadership Award and the ELI Distinguished Leadership Award. He served as a Congressional Black Caucus Fellow in 1994, and was inducted in the Chicago Public League Hall of Fame in 2005.

Boykin received his law degree from the University of Dayton School of Law in Dayton, Ohio and his bachelor's degree in political science from Central State University in Wilberforce, Ohio.

11-14-2006

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Barnes & Thornburg LLP

FMLA Leave May Disqualify Employees from ADA Coverage
A federal court's recent decision found that excessive absenteeism may disqualify an employee from protection under the Americans with Disabilities Act ("ADA"), even if the employee's time off was covered by the Family and Medical Leave Act ("FMLA").

11-14-2006

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Thompson & Knight LLP

T&K Attorney Receives Top Score on Texas Bar Exam
Rick Haan, an associate in the Dallas office of Thompson & Knight LLP, received the highest score on the most recent Texas Bar Examination. As a part of this distinction, Mr. Haan addressed the class of new lawyers being admitted to practice in Texas at an induction ceremony in Austin on Nov. 13.

More 2,500 law school graduates sat for the July 2006 bar examination. The Texas Board of Law Examiners administers the examination twice per calendar year.

"We congratulate Rick for this distinction, which is indicative of the legal skills and work ethic his clients will appreciate in the years to come. Attracting the best young associates to Thompson & Knight is a key component in our firm's commitment to continued growth and exceptional service," says Pete Riley, Managing Partner.

Mr. Haan joined the Firm's Real Estate and Banking practice group in Dallas this fall. He received his law degree, summa cum laude, from Texas Tech University School of Law in 2006 and his undergraduate degree in Telecommunications, summa cum laude, from Michigan State University in 1999.

11-14-2006

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Thacher Proffitt & Wood LLP

Thacher Proffitt Advised Bear Stearns and Citibank in Cap Cana Bond Offering
Thacher Proffitt was included in an article, "Dominican Luxury Resort Raises US$250 Million in Novel Project Bond Offering," in Latin Counsel regarding Cap Cana, a luxury resort in the Dominican Republic, completing one of the largest corporate bond issues in the history of the Dominican Republic. Thacher Proffitt was counsel to Bear Stearns, the initial purchaser, and Citibank, the trustee. The team included Marc Rossell, Chris Lewis, Mitch Williams, Lillian Moya, Jennifer Kevelson, Ines Vargas, and Jimena Gonzalez de Cossio, as well as Maria Livanos and David Natter.

11-14-2006

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