New York - Employment Screening Resources (ESR)
1. Searches available as part of the Multi-Jurisdictional Search:
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New York
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Department of Corrections
This database contains felony information on individuals who are or have been under the jurisdiction of the New York Department of Correctional Services. NYSDOCS provides demographic and custodial information for each inmate up to a maximum of three crimes. These records date back at least seven years. This data is updated quarterly.
P.O.D. (Proprietary Offender Data)
This database is comprised of proprietary criminal data compiled from previously ordered county, statewide and federal criminal requests, from all 50 states, which contained records, as well as data aggregated by a third party provider.
Sex Offender Registry
The sex offender registry is maintained by the New York Criminal Justice Service. This registry includes individuals who have been convicted of Level 3 and/or 2 sex offenses; aggravated and/or habitual sex offense(s) on or after 01/21/1996. Registry information includes offender name, alias name, sex offense description, felony or misdemeanor identification, offender ID number, date of conviction, supervising agency, risk level, employer information, address of registration, date of birth, race/ethnicity, gender, eye color, height and weight. Photo of registered sex offender provided as made available by the data source.
Additional:
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New York State Wanted
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New York's NYC Most Wanted
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2. Available Supplementary Searches:
Statewide All counties Felonies and Misdemeanors through the Office of Court Administratin--OCA. Additional surcharge of $65.00.NOTE: In New York, the method used by ESR to serach is throgh the OCA>
December 16, 2008
Effective February 1, 2009, three (3) new rules go into effect in the State of New York designed to give ex-offenders a second chance of entering the workforce. These rules affect both employers and background firms. A fourth law, effective September, 2008, gives employers some additional protections against lawsuits for negligent hiring if they can show that an applicant with a criminal record was hired after good faith consideration of the rules affecting the use of criminal convictions.
Under existing New York law (Correctional Law Article 23-A), an employer is required to consider and balance various factors where an applicant has a criminal record (unless, of course, there is a statute that prohibits the employment of a person with certain convictions). The factors are set out in New York Corrections law section 753 found at
The factors enumerated in section 753 of Article 23-A include such things as:
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The duties of the job
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The relationship between the criminal offense and the job
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How long ago the conviction occurred
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The applicant’s age at time of the crime
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How serious the offense was
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Information produced regarding the applicant’s rehabilitation and good conduct.
In passing some of these laws, the New York legislature cited a 2007 study that found that New York employees were largely not familiar with New York laws on utilizing past convictions, or that a criminal record poses a significant barrier to employment.
In response, the three new laws require the following effective February 1, 2009:
1. Provide a copy of Article 23-A: An employer must provide a copy of Article 23-A to all job applicants undergoing a background check. An employer may want to provide that notice at the same time the applicant signs a consent form and receives a disclosure form. A technical reading of the statute may suggest such a requirement is limited only to a situation where an employer is requesting a special type of background report called an “Investigative Consumer Report,” where information is obtained through interviews. However, the legislature in New York, based upon the legislative history, clearly intended this to apply to all consumer reports. As a best practice, employers should consider providing this notice regardless of the type of background report being conducted.
2. Posting a copy of Article 23-A: An employer must also post a copy of Article 23-A in “a place accessible to his or her employees and in a visually conspicuous manner.” Employers can simply download the copy of 23-A linked in this article. The required notice will likely be included in commercial labor posters that come out in 2009 for the state of New York.
3. Provide additional copy of Article 23-A if a criminal record is found: Where a background report on an applicant contains information on a criminal conviction, the employer must again provide a copy of Article 23-A to the applicant.
As part of the legislative approach, New York employers that follow Article 23-A now have increased protection from lawsuits for negligent hiring. This protection applies where an employer hires someone that has a conviction history but the employer has made a reasonable and good faith determination that, due to the factors in Article 23-A, the applicant should still be hired. In that situation, there is a “rebuttable presumption” that evidence of the employee’s past criminal record cannot be admitted into evidence and be used against the employer.
A “rebuttable presumption” is an assumption of fact accepted by the court until disproved by the other side. For example, evidence of the employee’s past criminal record can only be used in a negligent hiring case if the plaintiff can overcome the presumption by showing that there was not a reasonable and good faith determination by the employer under article 23-A. This new protection can potentially provide employers that do hire applicants with a criminal record protection from a lawsuit as long as the employer can document that the employer discovered the criminal record and then applied the criteria in Article 23-A in a reasonable and good faith manner.
ESR clients will receive a detailed memorandum and training in January on the details of these new laws in New York as well as some other “only in New York” rules. This also raises issues on how employers that are not in New York need to deal with New York applicants or applicants that formerly lived in New York.
For employers that would like the online links to the actual legislation as well as the legislative memos that outline the purpose and justifications for these laws, please contact Jared Callahan at 415-898-0044 or jcallahan@esrcheck.com
Limitations on Use of Conviction and Arrest Records.
Except as allowed under state law, it is an unlawful discriminatory practice to inquire about, or act adversely to information regarding “any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual.”
NY EXEC § 296(16).
NY CRIM PRO § 160.60 provides that arrests and prosecutions which are terminated in favor of the accused “shall be deemed a nullity.” Records of such arrests and prosecutions are sealed by the court’s own order following the proceedings. “The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.”
Prohibited Criminal Records Disclosures.
NY GEN BUS § 380-j provides: “(a) No consumer reporting agency shall report or maintain in the file on a consumer, information: (1) relative to an arrest or a criminal charge unless there has been a criminal conviction for such offense, or unless such charges are still pending…”
In addition, under § 380-j “no consumer reporting agency may make any consumer report containing… “(v) records of conviction of crime which, from date of disposition, release, or parole, antedate the report by more than seven years” with the exception that there is no seven-year limitation where “the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal twenty-five thousand dollars, or more.”
Non-Criminal” Offenses And Violations Can Trip Up Employers
Employers need to proceed with caution before utilizing “non-criminal” offense records. Some states, such as New York and New Jersey, have created categories of minor offenses that are specifically deemed to be “non-criminal.
New York also has its own version of the FCRA. ESR forms and procedures incorparte NY law.
From the November, 2004 ESR Newsletter:
“Inexpensive” Database Searches Can Result In Hiring Felons
Hot of the Press: A firm in New York City that delivers groceries to people’s homes in Manhattan, Brooklyn and Queens, found out the hard way that the use of an inexpensive and instant national criminal database does not provide the protection that some employers believe. According to a news account, FreshDirect hired an employee to deliver groceries who allegedly made obscene phone calls to female customers. The employee had a serious criminal record that did not show up in a database search performed by a large national background firm.
The employer utilized a so-called “National Criminal” search. This is a search of available databases in the majority of states taken from various sources, such as prison records or court indexes available from some courts. Although the report is valuable because it is national in reach, it is not a substitute for a real criminal search of state courts at the courthouse level. (In New York, the informatin in such a database is very limited) The national criminal searches are only intended as an inexpensive and instant “pre-screen” tool, or as a secondary search to supplement a courthouse search. Because it is a database, there can be errors caused by incomplete or inaccurate data. As a result, a person with a serious criminal record can be erroneously “cleared” and innocent people can be labeled as felons.
The lesson: Be careful using databases! The employer could have ordered a “real” New York search from the screening firm through the state Office of Court Administration (OCA), providing real statewide information for New York based upon the most current court records. Although more expensive than the cheap instant search, the cost is likely a great deal less than the negative publicity and the possibility of litigation.
In addition, Employers need to institute safe hiring procedures utilizing effective application, interviewing and reference checking processes. These procedures cost nothing, but substantially increase the employer’s odds of avoiding a person with an unsuitable criminal record even before the background check.
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