Attorney General Cuomo Secures Agreement With Major Security Firm To Protect Nys Security Guards From Unlawful Discrimination

NEW YORK, NY (February 12, 2009) - Attorney General Andrew M. Cuomo today reached an agreement with Guardsmark, LLC, the fifth-largest security firm in the United States, with at least 1,000 employees in New York State, to ensure that its application process does not discriminate against job applicantsbased on worker’s compensation history, disability, and other illegal factors. The agreement also requires Guardsmark to eliminate its requirement that applicants agree to unlawful deductions from their paychecks.

Federal and state law generally prohibits employers from asking about disabilities before applicants are hired. Further, under state law, employers may not ask about an applicant’s workers’ compensation claims. Under an agreement with the Attorney General’s Office, Guardsmark must overhaul its employment application for security guards and supervisors to eliminate questions about worker’s compensation claims, and to ensure that information about an applicant’s disability is collected and used in a way that complies with federal, state, and local laws.

“Federal and state law work in tandem to provide an equal playing field for all employees,” said Attorney General Cuomo. “Unlawful discrimination against workers in New York State jeopardizes hard-working individuals and the families they are trying to support. My Office is committed to making sure that employers across the state comply with our laws, which are designed to help New Yorkers find self-sufficiency through honest work.”

Attorney General Cuomo’s Office launched an investigation into Guardsmark after receiving complaints alleging that the company’s employment application process was unlawful. The Attorney General’s investigation found that questions on Guardsmark application either directly violated state or federal law, or asked for information that could be used to discriminate against applicants in violation of the law.

The investigation also found that Guardsmark required applicants to execute a “Property Damage Reimbursement Agreement,” which, if enforced, allowed Guardsmark to deduct from an employee’s wages the cost of any lost or stolen property discovered during the employee’s work hours - something expressly prohibited under New York State’s labor laws.

The Attorney General’s agreement with Guardsmark requires the company to:
Pay $110,000 to the State of New York to resolve the investigation;
Eliminate questions about and consideration of prohibited factors like disability;
Eliminate questions about or consideration of applicants’ prior workers’ compensation claims;
Guarantee jobs to all qualified applicants who are subject to medical inquiries and who can perform the essential functions of the job, with or without a reasonable accommodation.
Ensure that managers and supervisors receive training on the requirements of federal, state and local anti-discrimination laws; and
Eliminate a requirement that employees agree to have the value of items lost, destroyed or stolen on their shift deducted from their paychecks.

Mike Fishman, President of the SEIU 32-BJ Labor Union, which represents over 70,000 service workers in New York, said: "Security workers perform valuable and necessary work, and should be protected to the maximum extent under the law. Workers are often denied the basic human right of working and looking for work without fear of unlawful discrimination. Therefore, we are pleased that Attorney-General Cuomo and Guardsmark have reached an agreement that serves the best interests of the company's applicants and employees. Furthermore, the union applauds the Attorney-General for bringing this matter to a fair and just end, and believes that this agreement advances the key goals of protecting jobless residents of New York State and ensures that New York State companies are committed to equal opportunity for all."

Bruce E. Darling, Executive Director for the Center for Disability Rights, said: “It is all too common that New York State residents find themselves jobless because of disabilities that do not impair their ability to work. The Attorney General’s resolution of this investigation sets an important standard by assuring that applicants will not be asked about medical questions until they are first guaranteed a job if they can perform its essential job functions. This announcement should cause employers in New York State to ensure that they are following their obligations to provide equal opportunity to persons with disabilities under state and federal anti-discrimination laws.”

George T. McDonald, Founder and President of The Doe Fund, a national non-profit agency that works on behalf of underserved communities, said: “The fundamental premise that all individuals should have the opportunity to be productive members of society is undermined every time individuals with criminal records are denied opportunities to work because employers refuse even to consider them for a job. This agreement requires, consistent with State law, that Guardsmark engage in a deliberative process of considering whether an individual’s prior criminal record would infringe on their ability to perform the job while also ensuring that individuals who have served their debt for prior mistakes and seek to be productive members of society are properly considered for employment. These two requirements, if implemented by all employers in New York State, will go a long way towards helping the formerly incarcerated to reintegrate into society -- and ultimately will reduce crime and criminal recidivism.”

The case was handled by Assistant Attorney General Andrew J. Elmore under the supervision of Deputy Bureau Chief for Civil Rights Alphonso B. David and Counsel for Civil Rights Spencer Freedman.

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