New York Employment Background Checks
All employment background check services including instant driving records, pre-employment drug screening and pre-employment criminal record background checks are available in New York.
New York
New Marijuana EmploymLaw
updated 06/2021
Effective March 31, 2021, those aged 21 years and older can possess and use limited amounts of marijuana. This Alert is not provided because the New York law is radically different than other state laws legalizing marijuana, but rather as an opportunity to address this issue because this legalization is occurring across the country. The impact on CRAs is in the area of drug testing. Can the employer test for marijuana and if so when.
This law amends §201-d(2) of the Labor Code to make it unlawful to discriminate against those who use marijuana during non-work hours off of the employer’s property, and not using the employers equipment or other property. This clearly rules out testing applicants for marijuana unless the employer is required to test by law, e.g., US DOT positions. A CRA should ask if the employer is required by law to test. If not, take marijuana off of the panel for applicants.
An employer can test an employee who appears to be high while at work. Generally, this can be done if there is reasonable suspicion that the use is decreasing performance or creating unsafe working conditions. Any test for marijuana must be sent to a licensed laboratory located in New York. Thus, CRAs need to have a connection to such a lab if they are handling testing for their New York end-users.
An employer is allowed to test if a failure to test would result in a loss of a federal contract or federal funding.
In New York and other “legalized states” think of marijuana as “beer”. You can drink beer, but do not show up for work drunk. The same for marijuana – use it but do not show up high. Unfortunately, some states are looking to legalize hard drugs. Life continues to get harder for employers.
The law does try to limit how much an individual can legally possess: up to three ounces of cannabis and only twenty-four grams (a little less than an ounce) of concentrated cannabis. Above this level, it is unlawful possession and the law has several levels of violations from an infraction to a felony, depending on the amount that is possessed.
There are fines for employer non-compliance and private lawsuits are permitted.
Updated 06/2019
New York state court record access fees are by far the highest in the nation at $95. The major Boroughs of New York each charge individual court access fees of $95.00.
We do not run individual counties or Boroughs In New York State, but instead have found the state of New York Unified Court System to be the most reliable and cost effective source of criminal records.
In addition, we charge a $10.00 surcharge to comply with the New York Unified statewide court system, for a total cost of $105.00
Pre Employment background checks In New York
National Employment Screening provides professional pre employment background check services to New York employers to help you protect your employees and clients from the costly effects of making a “Bad Hire..”
All of our reports are FCRA compliant.
Updated june 2019
New York State has enacted the Gender Expression Non-Discrimination Act (GENDA), which went into effect on February 25, 2019.
NYCHRL Rule Changes
(NYCCHR) The New York City Commission on Human Rights adopted rules that amend and significantly broaden protections against workplace discrimination based on an individual’s gender, including gender identity or gender expression.
The rule changes amend the definitions of key terms previously omitted or undefined by the NYCHRL.
The rules were proposed in September 2018 and will go into effect on March 9, 2019.
The rule changes also include new examples of discriminatory conduct, such as imposing different dress or grooming standards based on gender.
New York City Bans Marijuana Testing Of Job Applicants
Effective May 10, 2020
New York City has passed a regulation which will classify pre-employment testing for THC, the active ingredient in marijuana, as a discriminatory practice. Although marijuana is still illegal under federal law, many states have legalized its use for medical and recreational purposes. This recent action by NYC is the first of its kind in the United States with enforcement beginning May 10, 2020. Employers will be prohibited from testing job applicants for marijuana with some specific exceptions.
Exceptions
Law enforcement officers
Certain construction industry workers
Commercial Licensed Drivers
Positions pertaining to the care of children, medical patients and vulnerable persons defined by New York regulations.
Positions which may be identified as having a significant impact on health or safety as identified by city administrative services.
Testing required by federal contracts or grants.
Testing under federal or state statutes
Testing under collective bargaining agreements
Testing requirements by U.S. Department of Transportation
Employers with business operations in New York City should examine their policies and procedures to ensure compliance with the regulation by next year. We will continue to monitor the guidelines offered by all applicable enforcement agencies to comply with this new regulation.
Gender Identity/Gender Expression: Legal Enforcement Guidance
2 N.Y.C. Admin. Code § 8-109(e).
3 The NYCHRL prohibits unlawful discriminatory practices in employment and covers entities including employers, labor organizations, employment agencies, joint labor-management committee controlling apprentice training programs, or any employee or agent thereof. N.Y.C. Admin. Code § 8-107(1).
Under the NYCHRL: “The term ‘employer’ does not include any employer with fewer than four persons in the employ of such employer,” except claims for gender-based harassment apply to employers of all sizes.
N.Y.C. Admin. Code § 8-102. With regards to counting employees, “natural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers shall be counted as persons in the employ of such employer.”
Id. “The term ‘employment agency’ includes any person undertaking to procure employees or opportunities to work.” Id.
“The term ‘labor organization’ includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms and conditions of employment, or of other mutual aid or protection in connection with employment.” Id.
4 The NYCHRL prohibits unlawful discriminatory practices in housing and covers entities including the “owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be constructed, or an interest therein, or any agent or employee thereof.”
N.Y.C. Admin. Code § 8-107(5)(a). Covered entities also include real estate brokers, real estate salespersons, or employees or agents thereof. Id. Under the NYCHRL: “The term ‘housing accommodation’ includes any building, structure or portion thereof that is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings.
Except as otherwise specifically provided, such term includes a publicly-assisted housing accommodation.” N.Y.C. Admin. Code § 8-102.
However, the NYCHRL exempts from coverage: “the rental of a housing accommodation, other than a publicly-assisted housing accommodation, in a building which contains housing accommodations for not more than two families living independently of each other, if the owner members or the owner’s family reside in one of such housing accommodations, and if the available housing accommodation has not been publicly advertised, listed, or otherwise offered to the general public; or
(2) to the rental of a room or rooms in a housing accommodation, other than a publicly-assisted housing accommodation, if such rental is by the occupant of the housing accommodation or by the owner of the housing accommodation and the owner or members of the owner’s family reside in such housing accommodation.” N.Y.C. Admin. Code § 8-107(5)(4).
5 The NYCHRL prohibits unlawful discriminatory practices in public accommodations and covers entities including “any person who is the owner, franchisor, franchisee, lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation.”
N.Y.C. Admin. Code § 8-107(4). Under the NYCHRL: “The term ‘place or provider of public accommodation’ includes providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages or privileges of any kind, and places, whether licensed or unlicensed, where goods, services, facilities, accommodations, advantages or privileges of any kind are extended, offered, sold, or otherwise made available.
Such term does not include any club which proves that it is in its nature distinctly private … [or] a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a religious corporation incorporated under the education law or the religious corporation law [which] is deemed to be in its nature distinctly private.” Admin. Code § 8-102.
6 Local Law 38 (2018); N.Y.C Admin. Code § 8-102.
7 Local Law No. 3 (2002).
8 Report of the Governmental Affairs Division, Committee on General Welfare, Intro. No. 24, to amend the administrative code of the city of New York in relation to gender-based discrimination (April 24, 2002) accessible through http://legistar.council.nyc.gov/Legislation.aspx.
9 Id.
10 Id.
11 Compare Local Law 38 (2018)(“’gender’ shall include actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth”) with Local Law 3 (2002)
(“’gender’ shall include actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth”).
12 N.Y.C. Admin. Code § 8-102.
13 Id.
14 Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (1st Dep’t 2009).
15 The gender-neutral title Mx. is pronounced “məks” (similar to “mex”) or “mɪks” (similar to “mix”).
16 Ze and hir are gender-neutral pronouns.
17 Where covered entities regularly request a form of identification from members of the public for a legitimate business reason, requesting a form of identification from transgender, non-binary, or gender non-conforming people is not unlawful.
Just as is the case for many cisgender people, many transgender, non-binary, and gender non-conforming people’ appearances may not appear the same as what is represented on their photo identification.
Covered entities may use a form of identification to corroborate a person’s identification, but may not subject a transgender, non-binary, or gender non-conforming person to a higher level of scrutiny than any other person presenting a form of identification.
18 N.Y.C. Admin. Code § 28-315.9. A single-occupancy restroom is a room with a single toilet, walls, a sink, and a door.
19 As stated in N.Y.C. Admin. Code § 8-130(a), protections against gender discrimination under the NYCHRL are broader than protections against sex discrimination under federal law.
Federal courts have established a higher threshold to find discrimination with respect to grooming and dress standards: differing standards based on sex or gender are permitted so long as they do not impose an undue burden, an evidentiary standard that the plaintiff must prove.
Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004) aff’d on reh’g, 444 F.3d 1104 (9th Cir. 2006) (granting summary judgment for defendant because plaintiff failed to produce evidence that requiring female bartenders to wear makeup placed greater burden on women than on men).
By comparison, the NYCHRL must analyze claims “separately and independently from any federal and state law claims,” 2005 Restoration Act, supra note 1, and is required to construe the law “broadly in favor of discrimination plaintiffs to the extent that such a construction is reasonably possible.”
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (denying summary judgment for the defendant because, under the more liberal standard of NYCHRL, the plaintiff provided sufficient evidence that gender discrimination may have occurred).
20 N.Y.C. Admin. Code § 8-107(e)(i).
21 Patient Protection & Affordable Care Act, 42 U.S.C. § 18116 (2010); N.Y. Dep’t. of Fin. Serv., Insurance Circular Letter No. 7 on Health Insurance Coverage for the Treatment of Gender Dysphoria (Dec. 2014).
22 While it is not the focus of this guidance, transgender people may have additional rights under § 8-107(15) of the NYCHRL, including the right to reasonable accommodations.
Some transgender, non-binary and gender non-conforming people have a diagnosis of gender dysphoria, which is a disability within the meaning of the NYCHRL.
As with any disability, covered entities must make reasonable accommodations for people with gender dysphoria.
SUNY passed ban the box. The Box policy will be July 1, 2017. The State University of New York has voted to pass a Ban the Box resolution to adopt a policy that will eliminate questions about criminal records on applications filled out by students wishing to attend any of the SUNY schools in New York.
The effective date of the SUNY Ban the Box policy will be July 1, 2017. Click Here
updated April 2015 and reported by CNN.
Job seekers in New York City can now rest assured that their credit history won’t impact their employment prospects.
The New York City Council passed legislation that bans most employers from discriminating against job applicants and current workers based on credit history.The bill passed Thursday by a vote of 47-3 and is being dubbed the strictest in the country.
The bill’s sponsor, Brad Lander, said credit checks can be discriminatory and don’t relate to job performance.
Our criminal records Smart Search Plus® has become the industry standard for an FCRA compliant quality criminal records background check.
It includes an unlimited check of the Federal criminal records repositories in the states where the applicant has lived for the past 7 years.
It also includes a check of any needed state and county criminal records checks as well as a social security number address history trace, a multi-state criminal records database search and a check of of the sex offender registry in all 50 states. .
It is the criminal records background check now chosen by most of our clients. For a brief overview of all of our employment screening services, please Click Here
We serve New York City, Brooklyn, Queens, Bronx, Long Island, Staten Island, White Plains, Buffalo, Albany and all other New York Boroughs.
We provide employment screening services for hospitals, nursing homes, franchised auto dealers, staffing companies, employee leasing companies, PEO’s, trucking and transportation companies, banks, high tech companies, insurance companies and all other employers in all New York cities.
Please note that in 2015, New York City has passed the “Fair Chance Act” which places significant restrictions on employer’s use of criminal records in employment decisions.
For more information: Click Here
New York court fees are the highest in the Nation. Most of the larger Boroughs/Counties in New York charge Court access fees of nearly $65.00 resulting in county criminal records check for New York employment screening to cost about $75 per county.
New York employment screening law: New York restricts vendor reporting of criminal conviction information to seven years:
New York Reporting restrictions (Enacted 1977)
FCRA, Article 25 Section 380-j Prohibited Information
(a) No consumer reporting agency shall report or maintain in the file on a consumer, information relative to an arrest or a criminal charge unless there has been a criminal conviction for such offense, or unless such charges are still pending.
(b) A CRA can report information about a detention of an individual by a retail establishment if the individual has admitted wrongdoing, has received notice that the information will be reported to a CRA and may be further reported to a retail establishment for employment purposes.
(f) No CRA may make any consumer report containing records of convictions which, from date of disposition, release, or parole, antedate the report by more than seven years.
Exception: If salary is reasonably expected to be $25K or more, the 7-year restriction does not apply.
New York law also requires that employers must dismiss records of any misdemeanor convictions older than five years unless the person has also been convicted of some other crime within the past five years.
New York Reporting restrictions (Enacted 1977)FCRA, Article 25 Section 380-j
Prohibited Information
(a) No consumer reporting agency shall report or maintain in the file on a consumer, information relative to an arrest or a criminal charge unless there has been a criminal conviction for such offense, or unless such charges are still pending.
(b) A CRA can report information about a detention of an individual by a retail establishment if the individual has admitted wrongdoing, has received notice that the information will be reported to a CRA and may be further reported to a retail establishment for employment purposes.
(f) No CRA may make any consumer report containing records of convictions which, from date of disposition, release, or parole, antedate the report by more than seven years.
Exception: If salary is reasonably expected to be $25K or more, the 7-year restriction does not apply.
New York law also requires that employers must dismiss records of any misdemeanor convictions older than five years unless the person has also been convicted of some other crime within the past five years.
The state of New York has passed into legislation an amendment to their state laws which define how a background check can be executed by the state’s employers and their obligations to consumers (or their job applicants).
This law will take affect on February 5, 2009. It has provisions similar to the Fair Credit Reporting Act (FCRA).
The New York Legislature has recently amended the original legislation concerning licensing and employment of persons previously convicted of one or more crimes to include Amendment 7638A:
All employers in the state of New York should note that as of February 1, 2009 you must comply with the New York State Correction Law Article 23-A, Section 753
SUBDIVISION (A) OF SECTION THREE HUNDRED EIGHTY-J OF THIS ARTICLE, TO A — — USER, THE PERSON, FIRM, CORPORATION OR OTHER ENTITY REQUESTING SUCH REPORT SHALL PROVIDE THE SUBJECT OF SUCH REPORT A PRINTED OR ELECTRONIC COPY OF ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW GOVERNING THE LICENSURE AND EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES.
The labor law is amended by adding a new section 201-f to read as follows:201-F.
POSTING REGULATIONS ON EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMES.
EVERY EMPLOYER SHALL POST IN HIS OR HER ESTABLISHMENT, IN A PLACE ACCESSIBLE TO HIS OR HER EMPLOYEES AND IN A VISUALLY CONSPICUOUS MANNER, A COPY OF ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW AND ANY REGULATIONS PROMULGATED PURSUANT THERETO RELATING TO THE LICENSURE AND EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES.
POSTING REGULATIONS ON EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMES. EVERY EMPLOYER SHALL POST IN HIS OR HER ESTABLISHMENT, IN A PLACE ACCESSIBLE TO HIS OR HER EMPLOYEES AND IN A VISUALLY CONSPICUOUS MANNER, A COPY OF ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW AND ANY REGULATIONS PROMULGATED PURSUANT THERETO RELATING TO THE LICENSURE AND EMPLOYMENT OF PERSONS PREVIOUSLY CONVICTED OF ONE OR MORE CRIMINAL OFFENSES.
Basically, the law requires employers that conduct background checks to post a copy in a visually conspicuous area and provide all applicants who have a criminal record a copy of: New York State Correction Law Article 23-A, Section 753:
Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses
This article reads as follows:§ 753.
Factors to be considered concerning a previous criminal conviction; presumption.
1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:
(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to the license or employment sought.
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
(e) The age of the person at the time of occurrence of the criminal offense or offenses.
(f ) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
2. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.
Generally, this law requires employers to:
Post a copy of Article 23-A in their place of business in a conspicuous area.
They must present a copy of this document to the subject of a background check when consent to conduct a background check is requested.Furthermore, the document must be given to the subject of a background check once again in the event that a criminal conviction is revealed on the background check.
Protection For Employers included: The law was also changed to protect employers from negligence suits if they hire people with a criminal history who cause harm. Under the new law, an employee’s criminal past can’t be used as evidence of negligence if an employer followed the law.