New York Passes Four New Rules Affecting Background Checks to Help Ex-Offenders Have a Second Chance

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:

  1. The duties of the job
  2. The relationship between the criminal offense and the job
  3. How long ago the conviction occurred
  4. The applicant’s age at time of the crime
  5. How serious the offense was
  6. 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.