As of February 1, 2009, employers and firms specializing in background information have a few more administrative hurdles when performing background checks of potential employees. Existing New York law, Correctional Law Article 23-A, already requires employers to consider and balance factors when deciding whether to hire an applicant with a criminal record. The amendments now require employers performing background checks to take the following additional steps: (1) provide a copy of Article 23-A to all applicants undergoing background checks that seek information concerning criminal convictions, (2) post a copy of Article 23-A “in a visually conspicuous manner” accessible to employees and (3) provide a copy of Article 23-A again to an applicant whose report contains a criminal conviction.
In addition to these new requirements, as of September 2008, the legislation also provides employers that follow Article 23-A with increased protection from negligent hiring claims. If an employer is sued for negligent hiring, the employer enjoys a rebuttable presumption that the employee’s prior criminal record will not be admitted against the employer.