Brief Summary
This article discusses the legal parameters surrounding employer background checks in New York, particularly concerning criminal history. It highlights the differences between arrest and conviction records, emphasizing that arrest records should not be used due to potential discrimination. The Clean Slate Act, effective November 16, 2024, will seal certain criminal records, limiting employer access to older information. New York City has additional regulations, including a "Fair Chance Process" that requires employers to make a conditional offer before conducting a criminal history check and provide applicants with opportunities to respond to adverse findings. The article concludes by questioning the necessity of criminal history checks for all positions, suggesting that some employers may find alternative hiring models more beneficial.
- Arrest records are not recommended for background checks due to potential discrimination.
- The Clean Slate Act will seal certain criminal records, limiting employer access to older information.
- New York City's "Fair Chance Process" adds complexity to background checks, requiring a conditional offer and applicant response opportunities.
Start with the Basics – Arrest Records
Arrest records, which indicate that someone has been charged with a crime, are distinct from conviction records, which signify a guilty verdict or plea. Arrest records reflect law enforcement suspicions, which have historically disproportionately targeted individuals based on protected characteristics like race and gender. The Equal Employment Opportunity Commission (EEOC) advises against using arrest records in background checks due to these potential biases and discriminatory outcomes.
Putting Conviction Records in Context
New York employers are legally permitted to check conviction records, but state law mandates that they assess the relevance of the underlying conduct to the job being applied for, as outlined in Article 23-A of the state Correction Law. This involves considering factors such as the state's policy of promoting employment for those with prior convictions, the job's specific duties, the potential impact of the offense on the applicant's ability to perform the job, the time elapsed since the conviction, the applicant's age at the time of the offense, the severity of the offense, evidence of rehabilitation, and the employer's interest in protecting property and safety. Employers cannot reject applicants based on criminal history unless the conviction directly relates to the job or poses an unreasonable risk to property, safety, or welfare.
Clean Slate Act Means Less Access
The Clean Slate Act, once in effect, will seal misdemeanor records three years after the individual's release from incarceration or sentencing if no incarceration occurred. Felony records will be sealed eight years after release from incarceration, provided the individual has no pending criminal charges and is not under probation or parole. Certain severe convictions, such as Class A felonies with potential life imprisonment and convictions requiring sex offender registration, will not be sealed. While employers can still screen for the most serious offenses, the law will limit access to older, less severe criminal history information.
New York City Regulates the Process
New York City has implemented a bifurcated process for background checks, requiring employers to verify all non-criminal qualifications and extend a "conditional offer" before conducting a criminal history check, with limited exceptions. Under the "Fair Chance Process," employers cannot reject an applicant based on adverse criminal history without providing written notice, a copy of the information relied upon, and an opportunity for the applicant to respond with information about rehabilitation or good conduct. The employer must evaluate the candidate based on the Article 23-A factors and determine if there is a direct relationship between the criminal history and the job or an unreasonable risk to property, safety, or welfare. If such a relationship or risk exists, the employer must provide the basis for its analysis, allow the applicant time to respond, and consider any additional information before making a final decision.
Is Criminal History Really That Important
The stringent regulations in New York State and City raise the question of whether checking criminal history is worthwhile. While some positions, such as those in schools and childcare, may require criminal history checks due to state licensing laws, New York City imposes additional requirements like notice and disclosure. Some employers, like Greyston Bakery and The Body Shop, have adopted "open hiring" models, foregoing background checks and interviews, resulting in lower turnover, reduced hiring costs, and improved morale. While open hiring may not be suitable for all jobs, employers should evaluate their screening practices to determine if they are overly disqualifying or provide insufficient benefits relative to the time and expense involved.
