New York Employee Background Check Laws

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Background Check Laws

If you’ve ever ran a background check, you’re probably familiar with the Fair Credit Reporting Act (FCRA). It’s straightforward and covers the dos and don’ts of background checks. What’s not always so clear and is subject to change more often, are the individual state laws regarding background reports. For instance, the NY Fair Credit Reporting Act, has more restrictive laws than the FCRA that employers need to watch out for in addition to standard FCRA guidelines. Here are the main differences to note, if the company you own or work for is located in New York.

  1. Fair Chance Act – Effective October 8, 2015 – Applies to employers with four or more employees
  • You can’t run a criminal background check or ask an applicant about their criminal background unless you’ve given the applicant a conditional offer of employment
  • You can’t publish a job advertisements of solicitation stating implicitly or explicitly that an applicant’s arrest of criminal record will limit the applicant’s opportunity to be considered for the job position.
  • If you’ve conditionally offered employment, you may not deny them employment unless:
    • You’ve provided the applicant with a copy of the background check
    • You’ve provided a copy of your analysis of the New York Correction Law Article 23-A and any documents in support of the decision to the applicant
    • You have given the applicant at least 3 business days to respond and you must hold the position open during this response period
  1. If you run a criminal background check and find a criminal offense, you must take into consideration the following factors before denying employment:
    • The specific duties and responsibilities the employee will have and whether their criminal offenses will affect how they perform these duties and responsibilities.
    • How long it’s been since the criminal offense occurred
    • The seriousness of the criminal offense
    • Whether the person has showed rehabilitation and good conduct since the criminal offense occurred
  2. You cannot determine an employment decision based on your applicant’s credit history unless you are hiring for:
    • Positions that are non-clerical and have regular access to trade secrets;
    • Positions with “signatory authority over third party funds or assets valued at $10,000 or more”;
    • Positions that “involve a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer”;
    • Positions where job duties regularly include the modification of digital security systems designed to protect the employer’s or client’s networks or databases;
    • Positions with access to information relating to criminal investigations or national security; and
    • Positions legally required to be bonded.