Employees and prospective employees with criminal convictions will have increased protection under new amendments to the New York General Business Law that will take effect on Feb. 1, 2009.
Article 23-A of the New York Corrections Law currently governs how and when an employer can use a criminal conviction in determining whether to hire a new employee or take adverse action against an existing one. Under the new amendments to this law, employers will now be required to provide a copy of Article 23-A to (1) a prospective employee subject to a criminal background check, and (2) any employee whose background check uncovers a prior criminal conviction, regardless of whether the employer takes adverse employment action against this individual. Additionally, all employers must post a copy of Article 23-A in an accessible and conspicuous area inside the place of employment.
Article 23-A provides that employers are prohibited from unfairly discriminating against those convicted of a criminal offense. However, employers may take a criminal conviction into account in hiring and other employment decisions when (1) there is a direct relationship between the criminal offense and the specific employment sought by the individual, or (2) the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the public. Article 23-A details factors an employer must consider when deciding whether one of the aforementioned situations exists, including, among others, the specific duties and responsibilities of the employment, how the criminal offense bears on the individual’s fitness or ability to perform relevant responsibilities, the time elapsed since the occurrence of the criminal offense, and the age of the person at the time of the criminal offense.
Employers should already be aware of the requirements of the applicable federal law, the Fair Credit Reporting Act (“FCRA”), which applies to credit reports, consumer reports (any information regarding a person’s creditworthiness, including criminal background checks) and investigative consumer reports (information compiled from a variety of sources to determine an applicant’s character and general reputation). The provisions of FCRA apply whenever an employer requests information from a credit reporting agency; they do not apply when an employer asks the applicant for background information or the employer verifies references independently. Under FCRA, an employer must (1) notify the applicant in writing that a report may be used, and (2) receive the individual’s written authorization before asking a credit reporting agency for a report.
If an employer intends to take adverse action—such as failure to hire—against an individual based at least in part on a FCRA report, the employer must provide the individual with (1) a copy of the report and (2) a description of the individual’s rights under FCRA. Then, once the action has been taken based on the report, the employer must notify the individual that such action has been taken. Employers must comply with the above-mentioned steps if the report plays any part in its decision to take adverse action.
In conclusion, employers are required to comply with numerous legal provisions to obtain and properly use background checks. On and after Feb. 1, 2009, employers must also make sure to post a copy of Article 23-A in an accessible and conspicuous area inside the work place, and provide a copy to any employee who is subject to a criminal background check.