What Are the Employment Background Check Laws in New York?

background check law

For many job-seekers, it feels like that one bad decision they made when they were young will follow them forever.

Having to check yes on an application to the question, Have you ever been convicted of a crime?

If so, this can mean the end of your chances of getting the job. 

But New York has your back.

Its layers of background check laws protect job-seekers and help level the playing field for those with concerns about unfavorable criminal or financial records.

Federal Background Check Law

You may have wondered, Is it against the law to do a background check without my permission?

The answer is yes under the Fair Credit Reporting Act (FCRA).

Not only must employers get your written permission to conduct a background check, they have to notify you if they intend to disqualify you based on the report. 

If the issue is a criminal record, the employer should look at the individual circumstances.

Because arrest and incarceration rates are higher for some racial groups, blanket bans on hiring those with criminal histories may be discriminatory under Title VII of the Civil Rights Act of 1964.  

New York Background Check Law

The State of New York offers additional background check protections.

New York’s Fair Credit Reporting Act bars credit reporting agencies from reporting arrests, unless they are pending, or criminal convictions that are more than seven years old.

And even if employers learn about a past conviction, they can only refuse to hire you if:

  • The offense is directly related to the job you seek; or
  • Hiring you would involve an unreasonable risk to property or the welfare and safety of others.

Because New York has decided that it wants to ensure that people with past convictions can find employment, the law requires very careful consideration of whether these exceptions apply.

Specifically, employers must consider the following factors:

  • New York’s public policy of encouraging employment of those with criminal convictions;
  • The duties necessarily related to the job;
  • What bearing the criminal offense has on the person’s ability to do the job;
  • How much time has passed;
  • The person’s age when they were convicted;
  • How serious the offense was;
  • Any evidence of the applicant’s rehabilitation or good conduct; and
  • Whether the employer has a legitimate interest in protecting property or the safety of others. 

Employers who fail to comply with these rules may be sued. 

New York City Background Check Law

New York City has gone even further in helping its residents find jobs with the Fair Chance Act.

The Fair Chance Act requires employers to do two background checks.

The first looks only at employment history, education, and reference checks and can be done during the interview process. 

Only after the company makes you a conditional job offer can they ask you to submit to a criminal background check.

Furthermore, if any convictions, pending cases, or driving infractions show up, you get a chance to explain. 

If the company does not want to give you the job because of your record, it has to do a Fair Chance Analysis (which basically considers the same factors required under the New York background check law described above).

Once the company gives you the written analysis and a copy of your background check, it has to hold the job open for five days while you gather evidence to set the record straight. 

Buffalo and Rochester have similar laws, and other cities may follow suit.

Have You Been Discriminated Against Because of a Background Check?

If you were passed over for a job or lost a job because of information that showed up on a background check, Ottinger Employment Lawyers can help.

Our lawyers have focused exclusively on employment law issues for over 20 years.

We know how emotional and stressful joblessness can feel. Let us help you get back on track. 

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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