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New York Expands Employer Obligations Regarding Criminal Background Checks

October 6, 2008

New York recently enacted legislation placing greater responsibilities on employers who request background checks on their employees or prospective employees.  The law amends Sections 380-c and 380-g of the New York General Business Law, which provide that both employers and consumer reporting agencies must inform individuals that the employer has requested a background check. 

A pre-existing law, Article 23-A of the Corrections Law, sets forth factors that an employer must consider in deciding whether to hire or take any adverse action against an individual with a prior criminal conviction.   Such factors include the date and severity of the criminal offense, the age of the individual at the time of the offense, and the relationship between the prior conviction and the employment sought.

The new amendments to the General Business Law provide that employers must provide a copy of Article 23-A to: (1) any prospective employee subject to a background check; and (2) any employee or other individual whose background check reveals a prior criminal conviction, even if the employer is not relying on the conviction to take an adverse employment action. The new law also requires that all employers post a copy of Article 23-A of the Corrections Law conspicuously in the workplace.

The law, which will take effect on February 1, 2009, reflects the State’s desire to provide even greater protections to employees and prospective employees with criminal records.  The requirement that such individuals be provided with a list of factors that employers must weigh in making employment decisions likely will lead to an increase in the number of legal actions taken against employers who make employment decisions based on an individual’s criminal record.

For more information on this law or for assistance guiding your organization through this process, please contact any of the Firm’s attorneys in our New York office.