New York Background Check Laws
What are New York background check and ban-the-box laws?
We update this overview of New York background check laws and ban-the-box rules often. But laws change quickly, and we cannot guarantee all information is current. Always consult your attorney for legal advice.
- FCRA
- District Laws
- Ban-The-Box
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Fair Credit Reporting Act (FCRA)
In order to set a standard for hiring policies, the federal government created the Fair Credit Reporting Act, or FCRA, which monitors and protects both employers and job candidates.
STATE LAWS
New York State Consolidated Laws Article 25 Section 380-j – Prohibited information
Our Take: Background checks can include criminal information that is older than 7 years, and bankruptcy information that is older than 14 years if the consumer report is used in connection with: (1) a credit transaction that involves or is expected to involve $50,000 or more; or (2) a life insurance policy of $50,000 or more; or (3) the employment of an applicant whose annual salary will equal or is expected to equal $25,000 or more.
Our Take: In the state of New York, it is illegal for an employer to discriminate against a job applicant who has been convicted of one or more crimes, unless: the position is directly related to the crimes the applicant has been convicted of, or if the applicant could endanger the property, safety, or welfare of the individuals she or he would be working with or that of the general public.
§ 753. Factors to be considered concerning a previous criminal conviction; presumption.
Our Take: “Employers – be they private or public – have to consider several factors when considering a job applicant who has been convicted of one or more crimes. These factors include:the public policy of the state the duties and responsibilities linked to the positionwhether the crime(s) the applicant was convicted of will have any effect on the applicant’s ability to satisfy the duties and responsibilities of the position the length of time between when the crime(s) happened and the hiring process the age of the person at the time she or he committed the crimes information related to the applicant’s rehabilitation or good conduct the safety and welfare of the property and the people that the applicant will work with as well as the safety and welfare of the general public. When considering Section 752, employers must also take into account certificates of relief from disabilities or certificates of good conduct that the applicant has received. These certificates could serve as proof to the applicant’s rehabilitation in regard to the offense(s) he or she committed.”
Our Take: If an applicant with criminal record history is denied employment or licensure, he or she has 30 days to request a written statement explaining the reason for the denial.
Our Take: Under the Stop Credit Discrimination in Employment Act, Employers in New York City may not inquire into credit history when making an employment decision, unless the position falls under an exception listed under N.Y.C. Admin. Code 8-107(24)
Our Take: “It is an unlawful, discriminatory practice for an employer to inquire into or rely upon a job applicant’s salary history to determine what salary he/she will receive in the applied-for position. An applicant’s salary history includes current or prior wage, salary, benefits or other compensation. Employers may, however, discuss with job applicants their expectations about salary, benefits and other compensation. If an applicant voluntarily discloses salary history to an employer, the employer may use that information.
BAN-THE-BOX AND FAIR HIRING LAWS
STATE LAWS — PUBLIC AND PRIVATE COMPANIES
Who must follow: This background screening law applies to all employers in the State of New York
Consideration of records: In compliance with Executive Law § 296 subdivision 16 (Human Rights Law) and the Family Court Act, employers are prohibited from asking at any time for applicants to disclose information about any arrest that resulted in a Youthful Offender Adjudication pursuant to Criminal Procedure Law § 720.35: any arrest that was processed as a Juvenile Delinquency proceeding in Family Court; any arrest that resulted in a sealing pursuant to Criminal Procedure Law (CPL) §160.50 or CPL § 160.55: any conviction that was sealed pursuant to CPL § 160.58, unless said inquiry is specifically required or permitted by New York State or federal law.
Who must follow: This ban-the-box law applies only to public sector employers/agencies/licensing authorities for the state of New York.
Timing of inquiry: Public sector employers or licensing authorities for the state of New York may only inquire into criminal history after the first interview.
Adverse action implications:
- Individualized assessment: Employers subject to this law must conduct an individualized assessment per the requirements of NY Corrections Law 23-A.
- Candidate access to information: Candidates who request a written statement setting forth the reasons for a denial must be provided such statement within 30 days of a request.
STATE LAWS — PUBLIC AND PRIVATE COMPANIES
Who must follow: NY Corrections Law 23-A applies to all employers in New York State.
Adverse action implications:
- Individualized assessment: This location requires an individualized assessment be performed per the requirements of NY Corrections Law 23-A.
- Candidate access to information: Candidates who request a written statement setting forth the reasons for a denial must be provided such statement within 30 days of a request.
LOCAL LAWS — PUBLIC AND PRIVATE COMPANIES
See which New York counties and cities have local ban-the-box and fair hiring laws.
