Security Guard Act amendments explained.
Under the amendments, however, businesses and real estate owners still must register their security guards with the Dept. of State, which is responsible for the Act's enforcement.
According to a Dept. of State memorandum, employers of security guards must file a notification form within 15 days of employment, retirement, resignation or termination of a security guard.
"The guards have to comply but the company does not have to become licensed," explained James F. McNicholas, senior vice president of Starrett Protective Services. "They have to be trained with an 8-hour entry-level training course and then 16 hours of on-the-job training."
One of the issues facing real estate owners is if in fact they are employing a "security guard" who is dressed in the clothing of a doorperson or porter. Advisories specifically exclude those employees functioning more than 50 percent of their time as a doorperson, superintendent, handyperson, porter, elevator operator, fire safety director and environmental safety person, among other job titles, from the training and registration requirements.
The Dept. of State, however, is being firm on registration. "If you have a doorman that has significant responsibility for security more than 50 percent of their working hours, they should be registered," said Daniel Shapiro, assistant counsel to the State's Division of Licensing Services. "The key is functional."
A security function would be controlling access, while someone who merely logs in visitors may or may not be, he explained. The status of a porter who cleans up and lets people in and out of the building could also come into question, depending on how much time they spend on security functions.
Security guards principally perform duties in prevention, deterrence, control, and enforcement.
Marolyn Davenport, vice president for government affairs for the Real Estate Board, said there were many discussions about which employees should be registered as security guards. The legislature did not intend for doormen and porters to become part of this registration, she said.
"A night watchman is one thing," she noted, "but a doorman, in most cases, will not be a security guard."
James F. Berg, of the Realty Advisory Board on Labor Relations, said the advisory also warns "they can't just avoid the Act by just hanging a tag on somebody."
The color of the uniform and the job title don't matter," agrees Mark J. Lerner, Ph.D., president of Epic Security. "You can tell the guy he's a vice president, but what matters are his duties," he said. "As it exists now, many people in the real estate industry need to be registered and aren't."
So far, the rules have not caused a problem in the residential industry. "I don't know of any doormen that have been certified or anyone who has modified their practices because of the Act," Berg said.
On the commercial side, although the elevator starters were included in the exclusion list, many often take the place of a security guard who takes a break, said Berg.
While some companies aren't always registering starters as guards, some are giving them the training because of liability issues, said Berg.
A company could get sued by someone who charges the individual was acting as a guard, or thought they were a guard because of the way they were dressed, or if an incident occurs during the time the starter was taking the guard's place.
Says John T. Santora, director of the metropolitan area management service of Cushman & Wakefield, "The real question is 'what is it going to cost me not to be in that situation?.'"
Private security guard firms who offer training services, as well as the Dept. of State, are recommending owners, managers and boards err on the side of caution. For a few hundred dollars, they can register their personnel as guards with the State, have them receive security guard training from a licensed "school" and complete a fingerprint and background check. It costs owners $110 for the application and fingerprinting fees.
Although most commercial management firms conduct extensive background checks on prospective employees, they differ in their scope and may not include a fingerprint match.
Lerner of Epic Security said people might want to avoid registration, but if an incident occurs, there will be a police and Dept. of State investigation.
"Then there could be liability concerns for the real estate owner or manager by [the injured party] claiming someone was not in a security job. You have to put yourself on a jury weighing these facts."
In the Bronx, Lerner recalled a recent incident after a housing complex hired an unlicensed company that provided armed guards. "Someone was shot and killed," recalled Lerner. "It's shocking that people even have armed guards and don't follow the regulations."
One "problem" with running personnel through fingerprinting and background checks is that there might be a match. A building's ownership may be faced with a situation in which a long-time trusted employee pops up with a conviction dating back to his youth and has to make a judgement call. On the other hand, the match could turn up a more recent incident.
"So far, we haven't run across any situations where [the authorities] said they weren't qualified," sighed Berg. "I don't know what they would do if the guy was union."
Cushman & Wakefield is in the middle of conducting training and background checks on over 100 security guards.
"I'm sure we will have to deal with some issues if they fail the background check," said Santora. "From a union standpoint they have existing tenure. You have to use your best judgement in that case."
Among the changes made in the amended bill signed by Gov. Mario M. Cuomo effective August 3rd, is the elimination of the FBI fingerprint check and fee. Guards must still submit to a New York State fingerprint check.
According to Shapiro, it was determined the FBI fingerprint search was not giving enough information for the cost, which was about $55.
"In the new law, we finally were given right to submit the prints to the FBI and they have eliminated it," complained McNicholas. "That was the only true background check because people move around and come from New Jersey or Connecticut. I always felt in terms of the doorman and concierge for a residential building it was a tremendously effective background check you could have accomplished for a small amount of money."
"We weren't getting complete reports and we found it wasn't giving us as much information or 'hits' to warrant the costs," explained Shapiro. In a change from past practices, however, the State will retain prints for future matches.
Santora believes it is a positive step to conduct the background checks and the fingerprinting. "That's important in trusting the security of your building and your tenants."
McNicholas noted that the concierges and doorpeople monitor alarm systms and know the routines of the tenants. "The real estate industry should have fought like hell to keep in the doorman and other building personnel. You leave for work in the morning and you are leaving your prize possession, your home, in their hands."
Attorney Jay Gordon Seiden, a partner with Seiden, Stempel & Bennett, is concerned about the Act and its cost and legal implications for owners. There are some recent Housing Authority and lease cases, he said, where the courts started to expand the liability of property owners for criminal activity.
"Where the owner is now responsible for the training of security he is holding himself out as a protector," said Seiden. "There is a subtle overtone to this [law]."
He noted owners of property are not insurers of safety. "That has been the law in New York going way, way back," he said. But, he warned, the courts are looking at prior knowledge and what owners did to respond to the problem.
For instance, if there were four break--ins and drug use - now there is knowledge - the owner must do something, such as fix the door that was broken or increase security.
"When you get into this business of training employees and there is an incident, and you don't train him, you've breached an obligation to the public," he explained. "The big owners won't have a problem, but now the small owners also have an obligation."
Lerner says providing training for the person in question is no 100 percent guarantee nothing will go wrong, but it's a guarantee the owner has met New York State's requirement and "you won't be held so grossly negligent that you will be held liable."
Seiden also deemed the "50 percent" test figure a problem. "The percentages become great lawsuits," he explained. "No matter what they do, no one understands it and it's grey."
"It's very hard to legislate proper security," agreed Peter L. DiCapua, president of the Building Owners & Managers Association of New York, (BOMA) and senior vice president of Atco Properties & Management. "It has to be motivated through the operation of the property."
In the wake of the 1993 Security Guard Act, which required employers become actual security companies, Cushman & Wakefield started two security companies for its non-contract guards, one union and one non-union, and they are maintained as two separate payrolls. All background checks and training is being conducted by United Security Services.
Santora said the entities will be retained, now that they are in place. The changes were made primarily to distinguish the guards and their functions from those of the concierges, he said.
"We are just trying for the benefit of the owners to comply with code," he noted. "The cost to train them is not tremendous."
Some cleaning services are having their porters licensed as well, Santora noted. "You are always better doing it, but sometimes it doesn't pay."
Part of the problem, he said, is whether or not the people can pass the test. "It's not that strict, but people should be more concerned if they are going to pass the background and fingerprint check," Santora said. "Then I have a right to terminate."
He was pleased to report of the security guards checked so far, all had passed their background and fingerprint checks.
Lerner's affiliated company, the New York Private Police Academy, trains security guards for the real estate industry. The 8-hour course costs $75 per person, and then the 16-hours of additional training through the year is $150. "We can set up something on the worksite," he added.
Starrett also a runs a school and trains other people's guards for about $40 to $50 a student and for $35 will take the guard's prints and fill out the forms for the real estate company to submit.
The Dept. of State will supply the owner will the correct forms and either allow them to take the prints themselves or direct them to a school or police station.
A guard or employer found guilty on a first violation of the act can receive a jail term of up to six months up and a fine not more than $1,000 or both. If the person is found guilty for a second time, they can receive a one-year jail sentence, a fine of not less than $1,000 and up to $2,500. "The max is a year and I doubt that we would grant licensure for a long time thereafter," said Shapiro.
Another aspect of the amended act is a ruling that temporary guards hired by a not-for-profit or public entity for their own events for no more than 15 days annually are exempt from the registration requirements as are volunteer guards. This was passed to help in particular local schools who often recruit parents for "guards."
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|Publication:||Real Estate Weekly|
|Date:||Sep 28, 1994|
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