Background checks play a crucial role in the hiring process for employers, helping them make informed decisions and ensure a safe and productive work environment. Employers must comply with specific laws and regulations governing background checks in New York to avoid legal issues and penalties.

Overview of New York State Laws

New York has a number of essential laws and regulations that oversee the process of conducting background checks for employment purposes. These laws are designed to protect the rights of individuals while ensuring that employers can make informed hiring decisions.

New York Human Rights Law

The New York Human Rights Law prohibits discrimination in employment based on protected characteristics such as race, color, national origin, gender, age, disability, marital status, and sexual orientation. This law applies to all aspects of employment, including hiring, promotion, and termination. Employers are prohibited from using background check information to discriminate against applicants or employees based on these protected characteristics.

When conducting background checks, employers must avoid unfair impact on individuals’ protected characteristics under New York’s Human Rights Law. A neutral background check policy can still be discriminatory if it disproportionately affects people in a protected class.

EXPERT INSIGHT: Background checks are an essential segment of the hiring process that serves as one of the keys to making informed and unbiased decisions. It ensures a safe and productive workplace. As an HR professional, it is our job to do this without bias. Studying and respecting the laws in countries and territories of our scope protect applicants from discrimination — New York is no exception. Every applicant, wherever they are in the world, deserves a chance to be evaluated for the job they’re applying for, not judged by past mistakes. – Charm Paz, CHRP

New York Correction Law

The New York Correction Law imposes restrictions on the use of criminal history information in employment decisions. Article 23-A of the Correction Law requires employers to consider factors before taking action based on an individual’s criminal history.

  • The nature and gravity of the offense
  • The time that has passed since the offense
  • The age of the individual at the time of the offense
  • The seriousness of the offense
  • The relationship between the offense and the job

Employers must give applicants their criminal history report and a chance to respond before making a final decision.

New York Labor Law

The New York Labor Law includes provisions related to background checks for certain types of employees, such as domestic workers and home care aides. Employers of home care aides must conduct background checks and provide written notice of their rights under Labor Law Section 201-D.

Additionally, the New York Labor Law prohibits employers from discriminating against employees based on their status as victims of domestic violence. Employers are required to make reasonable accommodations for employees who are victims of domestic violence, including allowing them to take time off from work to address legal or safety issues related to the violence.

Prohibited Practices

Employers in New York are prohibited from engaging in discriminatory practices during the hiring process. Using background check info to discriminate based on protected characteristics like race, gender, religion, age, disability, marital status, or sexual orientation is not allowed. NY Human Rights Law bans discrimination based on protected characteristics. Employers must ensure background checks don’t impact protected classes.

One common prohibited practice is blanket policies that automatically disqualify individuals with certain criminal records. This practice unfairly targets certain races, who are more impacted by the criminal justice system. Evaluate the applicant’s criminal history case-by-case, considering offense severity, time elapsed, and relevance to the job.

Employers cannot ask about protected characteristics like age, marital status, or disability status during hiring. Asking about personal traits in hiring can signal discrimination, even if it is unused.

Additionally, employers must be careful when using credit checks in the hiring process. Credit checks can unfairly affect protected groups. Employers should only use credit checks when they are directly related to the job and consistent with business necessity.

Compliance Requirements

To comply with New York background check laws, employers must follow several key requirements outlined in various statutes and regulations. Requirements for fair and responsible background checks to protect job applicants’ rights.

Before conducting a background check, employers must obtain written consent from the job applicant. Obtain separate consent for the background check and disclose it clearly to the applicant.

Providing Notice and Obtaining Authorization

Employers must provide applicants with clear and conspicuous written notice that a background check will be conducted. They must also provide notice and a summary of the applicant’s rights before conducting the background check. Additionally, employers must obtain the applicant’s authorization before conducting the background check.

Providing a Copy of the Report

Employers must give applicants a copy of their background check report and rights summary, which should include the applicant’s dispute rights and process.

Adhering to Timelines for Adverse Action

Employers must give a pre-adverse action notice if they don’t hire an applicant based on background check information. This notice must include a copy of the background check report and a summary of the applicant’s legal rights. Employers must wait for applicants to dispute report inaccuracies after sending a pre-adverse action notice before taking final adverse action.

Compliance with Federal Laws

In addition to New York state laws, employers must comply with federal laws regulating background checks, such as the Fair Credit Reporting Act (FCRA). The FCRA imposes additional requirements on employers, such as providing applicants with a separate disclosure and obtaining their consent before conducting a background check.

Penalties for Non-Compliance

Failure to comply with New York background check laws can result in serious consequences for employers. They may face fines and penalties imposed by state agencies and civil lawsuits filed by aggrieved individuals. Non-compliance can also lead to reputational damage to the employer’s brand, making it harder to attract top talent in the future.

Recent Developments and Updates

Employers should be aware of several developments and updates to New York background check laws in recent years. These developments reflect changes in legislation and evolving best practices in background checks.

Ban the Box Laws

One significant development in recent years is adopting “ban the box” laws in New York City and across the state. These laws prohibit employers from asking about an applicant’s criminal history on job applications or during the initial stages of the hiring process. Instead, employers must wait until later in the hiring process to inquire about an applicant’s criminal history, allowing individuals with criminal records to be judged on their qualifications first.

Fair Chance Act

The Fair Chance Act, part of New York City’s Human Rights Law, requires employers to wait until after a conditional offer of employment is made before inquiring about an applicant’s criminal history or conducting a background check. This law aims to give individuals with criminal records a fair chance at employment by delaying inquiries into their criminal history until later in the hiring process.

Salary History Ban

Another recent development in New York is the ban on asking job applicants about their salary history. This law, which applies statewide, prohibits employers from asking about an applicant’s salary history or relying on salary history in determining an applicant’s salary. The law addresses pay inequity by preventing employers from basing salary offers on an applicant’s previous salary, which discriminatory practices may have influenced.

Marijuana Legalization

With the legalization of recreational marijuana in New York, employers may need to reconsider their drug testing policies. While employers can still prohibit employees from using marijuana in the workplace, they may need to adjust their policies regarding off-duty marijuana use, especially considering that marijuana can stay in a person’s system for an extended period, potentially impacting drug test results.

Remote Hiring Practices

The shift to remote work due to the COVID-19 pandemic has also impacted hiring practices, including background checks. Employers may need to adapt their background check processes to accommodate remote hiring, such as using electronic consent forms and conducting virtual interviews.

Best Practices for Employers

Employers in New York can follow several best practices to ensure compliance with background check laws and promote a fair and effective hiring process.

Develop Clear Policies and Procedures

Employers should develop clear and comprehensive background check policies and procedures. These policies should outline the types of background checks that will be conducted, the process for obtaining consent from applicants, and the steps for handling adverse action based on background check results.

Train Staff Involved in the Hiring Process

Employers should train staff members in the hiring process on the legal requirements and best practices for conducting background checks. This training should include information on obtaining applicants’ consent, handling background check reports, and complying with applicable laws and regulations.

Use Individualized Assessments for Criminal History

Instead of using blanket policies that automatically disqualify individuals with certain types of criminal records, employers should conduct individualized assessments. This involves considering factors such as the nature and gravity of the offense, the time that has passed since the offense, and the relationship between the offense and the job.

Provide Clear and Conspicuous Notices

Employers should provide clear and conspicuous written notices to applicants before conducting background checks. These notices should explain the nature and scope of the background check and the applicant’s rights under the law.

Keep Records of Background Check Processes

Employers should keep detailed records of their background check processes, including copies of consent forms, reports, and any correspondence with applicants regarding background checks. These records can help demonstrate compliance with the law in case of a legal challenge.

Regularly Review and Update Policies

Employers should regularly review and update their background check policies and procedures to ensure compliance with changing laws and regulations. This can help prevent legal issues and ensure that the background check process remains fair and effective.

Frequently Asked Questions

Can employers in New York conduct background checks on job applicants?

Yes, employers in New York can conduct background checks on job applicants, but they must comply with state and federal laws regulating the use of background checks.

What information can employers include in a background check in New York?

Employers in New York can include a variety of information in a background check, such as criminal history, credit history, and employment history. However, they must comply with laws that restrict the use of certain types of information, such as criminal history, in employment decisions.

Are there restrictions on employers’ use of background check information in New York?

Yes, employers in New York are prohibited from using background check information to discriminate against job applicants based on their race, gender, religion, age, disability, marital status, sexual orientation, or other protected characteristics.

What should employers do if they find negative information in a background check report?

If an employer finds negative information in a background check report, they must follow certain procedures before taking adverse action, such as not hiring the applicant. These procedures include providing the applicant with a copy of the report and a summary of their rights under the law.

Are there specific requirements for conducting background checks on New York domestic workers or home care aides?

Yes, employers who hire domestic workers or home care aides in New York must conduct background checks on these employees and provide them with written notice of their rights under the law. This requirement is outlined in Section 201-D of the New York Labor Law.

Can employers in New York ask applicants about their salary history?

No, employers in New York are prohibited from asking job applicants about their salary history or relying on salary history in determining an applicant’s salary. This prohibition is aimed at addressing pay inequity and promoting fair hiring practices.

Conclusion

In conclusion, understanding and complying with New York background check laws is essential for employers. By following the laws and best practices outlined in this article, employers can conduct background checks effectively and legally, ensuring a fair and safe work environment for all employees.

Additional New York-Specific Resources