A Comparative Jurisdictional Review of New York City and Puerto Rico
As previously mentioned in our newsletter, one of our office goals this year is to tie roots to Puerto Rico and create a liaison with the island and its people. New York City is the home to tens of thousands of Puerto Ricans and, for a few years now, young adults have been moving to the Big Apple for a better life and employment opportunities, due to the natural disasters and financial crisis the island has endured for over a decade. However, moving from one place to another has its challenges and finding employment is one of them, as well as navigating the legal system in a foreign jurisdiction, even if it is just a different state or territory within one nation.
We all have heard the idiomatic phrase “no one is perfect, we all make mistakes from time to time;” some missteps graver than others. Nonetheless, when those mistakes end up in a conviction, obtaining employment can be quite burdensome, especially for individuals in the island of Puerto Rico where the economy is not as vibrant and employment opportunities are not as vast in comparison with New York City. If you are carrying a conviction on your shoulders, you could be subject to discrimination and often denied a position you clearly qualify for due to the stigma that carries any criminal sentence. New York City has taken steps and expanded protections to individuals with criminal records by imposing new obligations around background checks under the New York City Fair Chance Act. On the other hand, Puerto Rico is on its way to creating more employment opportunities for individuals with criminal records but work still remains to be done.
Puerto Rico and its Certificates of Good Conduct
In Puerto Rico, the right to employment is protected by its Constitution (see Amy v. Adm. Deporte Hípico, 116 D.P.R. 414 (1985)). However, current legislation contradicts this very notion and burdens individuals that have been convicted of a crime but have completed their sentence (see Exposición de Motivos, Ley Núm. 174 (2011), hereinafter, “Law 174”). Law 174 is one of the amendments to “Ley para Autorizar a la Policía de Puerto Rico la Expedición de Certificados de Antecedentes Penales” (Ley Núm. 254 de 27 de Julio de 1974, as amended, hereinafter “Law 254”) which empowers both the Police Department of Puerto Rico to issue Certificates of Criminal Records (commonly known as Certificates of Good Conduct or “Certificados de Buena Conducta” in Spanish) and the Superintendent of the Police Department of Puerto Rico to regulate such implementation.
As a general rule, employers in Puerto Rico, both public and private, require from the applicant to submit a Certificate of Good Conduct as part of their job application. If you have no convictions, this is just a pro-forma requirement and, nowadays, you can easily obtain the certificate online (before, you had to appear at a “cuartel” (Spanish for police precinct), fill out a form and pay a fee for such certificate). If you do have a conviction, such certificate will not only include convictions issued in Puerto Rico but will also include any conviction you received in other local, state, or federal jurisdictions of the United States of America and its territories. This creates a huge burden on individuals who have tried and are trying to turn their lives around but end up recidivating and are not able to reintegrate themselves into our society. This contradicts the mission of Puerto Rico’s criminal system, which is to reform, rehabilitate and reintegrate the offender.
In New York, and most states, if not all, the burden rests with the employer. It is the employer’s responsibility to perform a background check within the parameters of the law. In contrast, in Puerto Rico, this obligation rests with the employee.
The New York City Fair Chance Act
In simple words, New York City’s Fair Chance Act (“FCA”) protects individuals seeking employment by prohibiting employers in New York City to ask about criminal records before they make an offer. This gives applicants the opportunity to have a fair interview and be considered by their qualifications and merit, not their past encounters with the law.
On July 29, 2021, amendments to the FCA took effect. At a high level, the amendments include, but are not limited to, the following:
- A Two-Step Background Check – which means that criminal history backgrounds may only be conducted following a conditional offer of employment;
- A new “Fair Chance Process” – which means that if the applicant has a criminal background, the employer must perform an analysis set forth in detail by the New York City Commission on Human Rights; and
- An employer may not consider non-convictions.
This screening bifurcation became necessary because many employers rejected employment applications merely based upon the applicant’s criminal record, without regard of an in-person (or virtual) interview and actually making a fair and impartial decision based upon meeting the person.
Puerto Rico Senate Project No. 144 and 147: Is there light at the end of the tunnel?
On January 19, 2022, the Puerto Rican Senate passed Project No. 144 and 147 (“Senate Project”) which seeks to prohibit employers from discriminating against a job applicant based upon their criminal history. This is not the first-time members of the Senate have tried to pass a law in order to address employment discrimination. In 2017, another similar legislative proposal was submitted by Senator José “Chaco” Vargas Vidot without any support.
Similar to New York City’s FCA, the Senate Project proposes employers be prohibited from requesting criminal history of the applicant until a conditional offer of employment is extended. Therefore, removing the outdated and antiquated Certificados de Conducta that have been burdening job applicants for decades now and preventing individuals from reformation, rehabilitation, and reintegration.
Project No. 144 and 147 are pending further review and approval on the Puerto Rico’s House of Representatives.
Individuals seeking employment should not be stigmatized by their past criminal history. Guarantees, such as the Two-Step Background Check imposed in New York City are a great way to safeguard an individuals’ right to make a living and reinvent themselves. Accordingly, Puerto Rico’s House of Representatives should vote in favor of Project No. 144 and 147, which would provide a fairer hiring process to workers in Puerto Rico.
If you are an employer and need guidance around the Amendments to New York City’s Fair Chance Act, please reach out to our office and we will be glad to assist you.
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