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New York Bars Insurers from Denying Commercial Crime Coverage Due to Employee’s Prior Criminal Conviction

By Susan M. Corcoran, Richard I. Greenberg, David S. Greenhaus, Christopher M. Valentino and Bradley M. Pryba
  • January 12, 2017

The New York State Department of Financial Services (NYSDFS) has promulgated a regulation that requires insurance companies to provide Commercial Crime Coverage to employers who have prior knowledge of an employee’s prior criminal conviction. Commercial Crime Coverage is defined as coverage under a policy of commercial risk insurance that provides burglary and theft insurance or fidelity insurance.

NYSDFS was created in 2011, replacing the New York State Banking and Insurance Departments. It supervises many different types of financial services institutions, including insurance companies. The Department has a stated goal of guarding against fraud and financial crises, as well as modernizing regulation of financial services in New York. Its regulations can have ripple effects for companies dealing with financial services institutions and insurance companies.

The new regulation (Title 11 of the New York Codes Rules and Regulations Part 76), issued by NYSDFS on December 6, 2016, applies only to insurers whose insured has engaged in a Correction Law Article 23-A analysis.

The Correction Law forbids discriminating based upon a conviction for a previous criminal offense, unless there is a direct relationship between the criminal offense and the employment sought. The Correction Law specifies eight factors, including the public policy of the state, when analyzing whether there is a “direct relationship.”

Eight Factors

Eight factors to determine a “direct relationship” under Article 23-A:

  1. The state public policy encouraging the employment of persons previously convicted of one or more criminal offenses;
  2. The specific duties and responsibilities necessarily related to the employment sought or held by the person;
  3. The bearing, if any, the criminal offense(s) will have on the person’s fitness or ability to perform one or more such duties or responsibilities;
  4. The amount of time that elapsed since the criminal offense(s);
  5. The age of the person at the time of the criminal offense(s);
  6. The seriousness of the criminal offense(s);
  7. Any information produced by the person, or on his or her behalf, regarding rehabilitation and good conduct; and
  8. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Effective Date

The regulation is effective July 1, 2017. It will be applied only prospectively to policies issued, renewed, or delivered in New York after that date.

However, insurers may properly audit employers and require them to maintain adequate records to demonstrate that the employer, in fact, conducted the full Article 23-A analysis. This process therefore may begin before the effective date for policies to be issued on or after July 1, 2017.

Next Steps

Employers in New York should be familiar with their obligations to consider the Article 23-A factors prior to denying employment. The new regulation is another incentive for keeping accurate records of the analysis, as an employer may otherwise lose the benefit of commercial crime insurance coverage.

If you have questions or concerns about this or other workplace developments, please contact a Jackson Lewis attorney.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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