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BusinessColumnistsCarrie Mason-Draffen

Fingerprinting job applicants: When to do it, when not to

Knowing when it is legal to fingerprint employees

Knowing when it is legal to fingerprint employees is important to a business owner. Photo Credit: iStock

DEAR CARRIE: We require all our employees to be fingerprinted before they start work with us. In the past year we've hired two people, had them fingerprinted before their first day, and then for whatever reason, they never showed up for work. So we've lost $85 on each person. Going forward, can we legally require them to pay and then reimburse them after they start work? -- Fine Print

DEAR FINE PRINT: It's worth noting right off that employers can require prospective employees to be fingerprinted only if state law allows it, said employment attorney Howard Wexler of Seyfarth Shaw in Manhattan.

"Employers may not require fingerprinting of prospective or current employees, unless otherwise required by law to do so," Wexler said. "You should first check to make sure that you are in an industry that permits such fingerprinting of job applicants prior to employment."

Some categories of workers that must be fingerprinted as a condition of employment include school and law enforcement personnel, securities brokers and hospital workers, Wexler said.

Despite your frustration, requiring prospective employees to shell out money for a process you require isn't a good idea, he said.

Paying for fingerprinting primarily happens one of two ways: Either a prospective employee is required to pay for the process directly as a prerequisite for a license, or is not required to pay at all.

When an applicant needs to be fingerprinted to obtain a license in order to be considered for a job, the person does so at his or her own expense through a state agency, unless a collective bargaining agreement provides otherwise, Wexler said.

"Thus, you would be permitted to have the applicant simply bear the cost of fingerprinting," he said.

Teachers would fall into this category.

If you can legally require applicants to be fingerprinted and they work in a profession that doesn't mandate that they pay for fingerprinting "it is not recommended that you require them to pay then reimburse them," Wexler said.

"An analogous situation concerns pre-employment medical examinations that certain employers ask applicants to complete before commencing work," Wexler said. "Under New York labor law, it is unlawful -- unless a collective bargaining agreement provides otherwise -- for any employer to require any applicant for employment to pay the cost of a medical examination required by the employer as a condition of original employment."

DEAR CARRIE: A good friend works at a local nonunion hospital where the employees don't get an individual breakdown of their vacation, personal or sick days. They are only given a total for the number of hours they have accumulated. When they take a day or week off, those hours are subtracted from their accumulated total. But they have no idea whether they are still using vacation or personal days or if the are dipping into their sick time. Because the employees aren't unionized, nobody wants to complain and risk getting laid off. Is this practice legal? -- No Accounting

DEAR NO ACCOUNTING: This haphazard approach to record-keeping sounds maddening, but it also sounds legal. It's legal as long as the all-in-one bucket approach doesn't shortchange employees on the number of days they are owed. To help ensure that, your friend should keep her own records and compare them with the company's tabulations from time to time.

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