New York Employment Screening Statutes
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
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 applicants arrest record to be unlawful.
Employers may only consider (1) an applicants 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 §
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.