On February 1, 2009, amendments to the New York Fair Credit Reporting Act took effect. Companies with employees in New York now must notify applicants and employees of their rights under Article 23-A of the New York Correction Law (Article 23-A). The amendments are intended to insure that employers inform employees and applicants of the laws prohibiting discrimination based upon criminal history, to encourage the employment of persons with criminal records and to help reintegrate convicted criminals. The amendments serve as a general reminder that employers who conduct background checks must comply not with not only the federal Fair Credit Reporting Act, but also the numerous state laws and regulations that further restrict employers' collection and use of such information.
Recommendations for Employers with New York Operations
Employers who operate in New York should immediately post a copy of Article 23-A, should modify their procedures to insure that they give copies of Article 23-A to employees and applicants for whom they intend to conduct a background check, and should modify the written authorization forms to include an acknowledgement that the applicant or employee received a copy of Article 23-A. (A copy of Article 23-A is available at the New York Department of Labor website: http://www.criminaljustice.ny.gov/pio/correction-law-article-23a.pdf.) Employers are also required to give copies of Article 23-A to employees and applicants when: (1) the employer receives a background check containing criminal convictions and (2) the employer receives a written request about whether an investigative consumer report was made.
Recommendations for Employers Generally
Background checks are now a regular part of the hiring and retention process. Nonetheless, employers need to be aware of the federal, state and local requirements that govern employers' ability to inquire about and use criminal conviction information. Because many states, like New York, limit what employers can do when considering people with criminal records, employers should document their reasons for taking adverse employment actions against persons who have criminal histories to demonstrate their compliance with applicable laws.