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Vol. 6,  #11 November 2, 2015

NYC Enacts Fair Chance Act
New Limitations on Criminal Background Checks

Dealers outside NYC still subject to NYS law

     Employers in New York City are now subject to the Fair Chance Act which makes it illegal to ask a job applicant about a possible criminal record before making an offer of employment.  Effective October 27, 2015 employers in NYC can no longer ask about criminal history on job applications or job interviews.  

     Dealers location within NYC may still check a prospective employee's criminal record after a conditional job offer is made.  If the employer discovers a negative criminal history that creates an unreasonable risk of employment then the offer of employment can be revoked; provided that the employer provides a written notice containing the reasons for revoking the job offer and keeps the job open for three (3) days following the revocation of the offer to provide the applicant with time to address the issue or correct incorrect information.     

What About Employers Outside NYC?

     Employers outside of NYC are not subject to the Fair Chance Act requirements.  However, New York State law does have other restrictions on inquiries into criminal history of job applicants.  For example, it is an unlawful discriminatory practice for an employer to make any inquiry about any arrest or criminal accusation of an applicant which is not currently pending against that individual or which has been resolved in favor of that individual.  Asking an applicant if they have ever been arrested is illegal.  It is also unlawful to require any individual to divulge information pertaining to any such arrest or criminal accusation or to take any adverse action based on such an arrest or criminal accusation.

     It is legal outside of NYC to ask an applicant if they have been convicted of a felony.  But if the answer is "Yes" then you may only deny the applicant the job if the reason for the conviction is "directly related" to the job in question or if the conviction history indicates that hiring the applicant would pose an unreasonable risk to property or to the safety of others.

     For more information on what you can and cannot do during a job interview or to have your job application reviewed for compliance with New York State law call Stevan LaBonte at 516-280-8580 today.  

     

MAKING THE PROPER 

PRIOR USE DISCLOSURE
     

 
Under New York law dealers must provide a "Prior Use" disclosure to a customer if the used vehicle's  principal  prior use was as a:
  • Rental;
  • Taxicab;
  • Police vehicle; or
  • Driver education vehicle.
What does "Principal Use" mean?

Principal use means more than 50% of the total miles at time of sale. For example:
 
1. Dealer is selling a vehicle with 50,000 miles. The paperwork indicates that Enterprise sold the vehicle at auction two years ago with 20,000 miles on the odometer. The dealer is not required to make a prior use disclosure in this scenario as the rental history totals less than 50% of the mileage at time of sale. 
 
2. Dealer is selling a vehicle with 30,000 miles. The CARFAX report indicates that the vehicle was operated by Fred's Driving School until it was sold six months ago with an odometer reading of 18,000 miles. The dealer must make the prior use disclosure because the vehicle was used for driving instruction for more than 50% of the mileage at time of sale.

How do I make the required disclosure?

Insert the following disclosure on the bill of sale or on a separate document (signed by the customer) and check off the appropriate box:

Prior Use Certification: The principal prior use of this vehicle was as: a police vehicle ______, a taxicab _________, a rental vehicle _________, or a driver education vehicle __________.
 
What happens if the dealer fails to make the disclosure? 

A customer who does not receive the required disclosure may sue the dealer to recover damages. Damages generally represent the difference in price between a vehicle with a history of prior use and a vehicle without a history of prior use. The statute authorizes the court to enter a judgment against the dealer for up to three (3) times the actual damages. The Court may also award the customer reimbursement for reasonable attorney's fees.     
 



 
Should you have any questions or need advice on anything related to the dealership please do not hesitate to give me a call or send me an e-mail.  Your questions will be answered promptly!!!

Sincerely,

Stevan LaBonte

Stevan H. LaBonte, Esq.
LaBonte Law Group, PLLC
100 Ring Road West, #108
Garden City, NY 11530
 
516.280.8580 (Phone)
631.794.2434 (Fax)