New York Employment Screening Statutes

Updated 04/2020

Please be advised that legislation has passed as part of the 2019/2020 NYS budget raising the cost of the criminal record search conducted by OCA’s CHRS Unit from $65 to $95 per name and date of birth. The legislation increasing the fee is expected to take effect in the next several days when the Governor signs it.

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

New York

Arrest: Employers may not request information relating to an arrest without a conviction, unless the charges are still pending.N.Y. Exec. Law 15.296.16. The New York Division of HumanRights Guide to Pre-Employment Inquiries also declares inquiries into an applicant’s arrest record to be unlawful.

Conviction:

Employers may only consider (1) an applicant’s convictions that bear a direct relationship to the job (2) whether

employment would create an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,

or (3) whether the position is in relation to the regulation of child- care facilities. N.Y. Corr. Law. §§23-A 752, 753; N

.Y. Exec. Law §

296(15).

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.

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.

New York Executive Law § 296 – Human Rights Law – Unlawful discriminatory practices

15. It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article [fig 1] twenty-three-A of the correction law.

16. It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise,

or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law,

in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law.

New York Correction Law – Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses

§ 750 – Definitions

For the purposes of this article, the following terms shall have the following meanings:

(1) “Public agency” means the state or any local subdivision thereof, or any state or local department, agency, board or commission.

(2) “Private employer” means any person, company, corporation, labor organization or association which employs ten or more persons.

(3) “Direct relationship” means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought.

(4) “License” means any certificate, license, permit or grant of permission required by the laws of this state, its political subdivisions or instrumentalities as a condition for the lawful practice of any occupation, employment, trade, vocation, business, or profession.

Provided,however, that “license” shall not, for the purposes of this article, include any license or permit to own, possess, carry, or fire any explosive, pistol, handgun, rifle, shotgun, or other firearm.

(5) “Employment” means any occupation, vocation or employment, or any form of vocational or educational training. Provided, however, that “employment” shall not, for the purposes of this article, include membership in any law enforcement agency.

§ 751 – Applicability

The provisions of this article shall apply to any application by any person who has previously been convicted of one or more criminal offenses, in this state or in any other jurisdiction, to any public agency or private employer for a license or employment, except where a mandatory forfeiture, disability or bar to employment is imposed by law, and has not been removed by an executive pardon, certificate of relief from disabilities or certificate of good conduct.

§ 752 – Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited

No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant’s having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of “good moral character” when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless:

(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or

(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

§ 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.

§ 754 – Written statement upon denial of license or employment

At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial.