Employers conduct background checks as a matter of business for new hires, promotions and when circumstances may dictate investigating a matter or employee. Many such checks (like making sure a prospective employee has no prior records , particularly in sensitive areas like finance and government). But some may use background checks for unfair and unscrupulous purposes. If you feel you’ve been subject to an unfair or illegal NYC background check, our experienced background check law attorneys at Moshes Law can work with you to make sure your rights haven’t been violated.
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New York State Laws on Employment Background Checks
There are federal and state laws that govern and provide certain rights to citizens. Two federal laws are:
The FCRA was put into law in 1970. The act provides consumer privacy protections when it comes to credit reporting agencies that gather information and how that information can be used. Credit reporting agencies are restricted in the kind of information they can retrieve and disseminate. One restriction, credit reporting agencies can’t release information on collections, liens, bankruptcies, or judgments more than seven years old. Nor are they allowed to release arrest information that’s seven or more years old when the arrests didn’t end in convictions The FCRA also restricts the types of information employers can use in hiring personnel. Employers must advise prospective hires in writing of intentions to conduct background checks. They must also obtain written consent prior to any such background checks. If the employer finds negative information, they’re required to abide by a two-step procedure before making final hiring decisions.
Title VII of the Civil Rights Act forbids discrimination against protected classes of employees and prospective hires, specifically regarding criminal history information and how it relates to employment background checks. Employers are advised to evaluate each hire on a case by case basis and specific to how any past criminal history may relate to the specific job the employer is hiring for.
Several cities and counties in New York also expand on federal protections provided. New York City passed the Fair Chance Act which makes it illegal for most employers to ask about criminal history before a prospective hire is offered a job. The same goes for Buffalo and Buffalo City Code Section 154-25. Employers in Rochester, New York can’t ask about criminal histories until after the first interview.
New York City’s Fair Chance Act
The Fair Chance Act is the primary NYC background check & anti-employment discrimination law. It protects prospective hires by prohibiting employers from discriminating against applicants with criminal backgrounds for employment reasons without utilizing the individual assessment outlined in New York Corrections Law, Article 23-A. Employers are also forbidden from considering history in hires if arrests didn’t lead to convictions. Nor may employers conduct credit checks on prospective hires unless they’re being considered for sensitive positions that require credit checks, as outlined by state and federal law. Also credit reporting agencies may not report drug or alcohol records or mental institution confinements seven years or older or satisfied judgments more than five years old.
Arrests not Resulting in Convictions
Under New York employment background check law, credit reporting agencies may not release information about non-conviction arrests unless the cases are pending. Nor may employers ask about or act on information regarding non-convictions. The New York City Commission on Human Rights has a list of non-convictions that can’t be used, including but not limited to the following:
- People not charged or prosecuted after arrest
- Hearing adjournments when a case may be dismissed
- Cases involving acquittals or charge dismissals
- Sealed convictions
- Juvenile offender cases
- Cases where the judgment or verdict were vacated
- Convictions in other states for a non-criminal offense
Discrimination Against Criminal Convictions
The Fair Chance Act also provides for the following:
- It forbids inquiries concerning a prospective hire’s criminal history until after a job offer is proffered, and
- employers must provide prospective hires with notice and reasons why for the withdrawal of a conditional job offer, and
- the employer must give the prospective hire three business days to respond to the potential offer withdrawal.
Updates Regarding Pre-Employment Background Check in New York
Recent Fair Chance Act amendments that took effect in July 2021 expand protections for people with criminal records and hold employers to a higher standard for conducting NYC background checks. Criminal background checks can only be done after a conditional offer of employment. That background check must undergo a two-step process:
- If a criminal background check is run, any non-criminal background checks (education, references, job history, etc.) must be done before a conditional offer is made.
- Criminal history can be checked after a conditional offer is made.
Law mandates the two step process. If a conditional offer is made, it can’t be revoked based on non-criminal background information when that information could’ve been retrieved prior to the offer being made. If you feel you may have lost out on a job opportunity, or an offer was withdrawn for the above reason, call our law offices for a free consultation.
What Employees Should Know about Background Checks
While there are numerous protections in place for employees and prospective hires, there are some things they should be aware of. Employers may employ an exemption to the Fair Chance Act if federal and state laws require background checks due to the nature of the job opening. This mainly relates to financial, law enforcement, or city government jobs. However, employers carry the burden of proof for qualifying for these exemptions.
Employers Must Be Open and Honest about Background Checks
There are certain things employers must do before running background checks or viewing a prospective hire’s credit report:
- Written permission for the background check must be obtained.
- Any information obtained from the check can be a factor in deciding on whether to extend a job offer.
- They must certify they followed the law exactly, especially when it comes to informed consent.
If the employer isn’t following these guidelines, then chances could be they could be breaking the law.
What If an Employer Finds Something Negative in a Background Check?
There may be cases where an employer finds something that would lead to a refusal to hire or rescission of a conditional job offer. While you do have the right to refuse a background check, keep in mind an employer can deny employment based on that refusal. If employers do find something, they must also provide contact information of the background check company and provide information on how to dispute information in the report.
Consult with an Employment Law Attorney
Finding and landing a job may be difficult in this uncertain economy and age of Covid-19. While many employers are on the up and up and comply with required laws involved in the hiring process, some may not be as forthcoming in their hiring process.
If you feel you’ve been the victim of unfair hiring practices, related to background and credit checks, fill out the form on our website to talk to oen
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