If you run employment backgrounds, you know the laws are constantly changing. Some states and cities have laws which are stricter than those of the Fair Credit Reporting Act. New York State and New York City are two such locations.

Article 23-A of the New York Correction Law, requires, as with all ban-the-box locations, that a conditional offer of employment be given before an applicant’s criminal history can be considered. Unlike some ban-the-box laws, Article 23-A applies to both public and private employers.

As listed in Article23-A, before denying a position or promotion to a candidate, employers are required to consider:

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 or held by the person.

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.

There are two additional items to be considered:

1)    Certificate of Relief from Disabilities

2)    Certificate of Good Conduct

If an applicant has received either of these certificates, that person is considered rehabilitated regarding the related offense(s).

When requested by the applicant, an employer is required to provide a written statement regarding the reasons for denying a position to the applicant within 32 days.

New York City decided that even with Article 23-A, discrimination against people with records still existed, so the city enacted its Fair Chance Act, which requires employers to follow specific processes. This act starts at the phase of advertising a position to be filled. Job postings cannot refer to a background check or mention anything about a criminal record/history. 

Only when a conditional offer of employment is made can an employer discuss and run a background check. Applicants do not have to disclose, nor can employer inquire about, non-convictions, sealed convictions, or adjournment in contemplation (ACD). If the employer does manage to obtain any of these records, the information cannot be used, except regarding police or peace officer positions.

If an offer is to be rescinded because of the results of the background check, the Fair Chance Process requires the employer to:

1.     Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history.

When using a Credit Reporting Agency to conduct the checks, a copy of the background report suffices for this requirement. If any additional information is used outside of the background report, the employer must provide the additional information, in writing, to the applicant. Refer to the Fair Chance Act for additional requirements for employers who conduct the checks themselves.

2.     Share with the applicant a written copy of its Article 23-A analysis.

There is a “Fair Chance Act Notice” form to be completed which will detail the reasons the position was rescinded. The form can be found at: https://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf

3.     Allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.

While this act mentions a three-day time period, the FCRA considers a minimum of five business days to be a fair time period.

If you hire in the state or city of New York, make sure you take the time to review the laws regarding backgrounds, and check with your legal counsel as necessary.

Additional ASE Resources

ASE Background Screening – ASE can protect your organization from the cost of a bad hire.  Our new and improved background screening system offers a restructured pricing model, easier integration, and simplified applicant entry.  Contact Susan Chance to learn more.

Sources:  natlawreview.com, nyc.gov, recordgone.com