New York Background Checks: The Hidden Rules That Could Sink Your Hire

This guide will cover the following:

• Critical differences between New York regulations & other states.

• Potential criminal gaps due to uniquely defined misdemeanor & felony classifications.

• Turnaround processing times & costs driven by a multi-layered judicial system.

• Specifics around 8 vastly different hiring rules vs. other states.

New York's unique laws and regulations surrounding background checks create a compliance maze that employers must navigate carefully.  Failure to adhere to these rules can result in costly legal repercussions and damage to an organization's reputation.  Compounding these challenges is the fact that court records in New York are often too slow or too expensive to obtain.

In this comprehensive guide, we'll delve into the complexities of New York background checks, explore the state's legal landscape, and provide insights on how to effectively conduct these checks while mitigating risks. 

The Unique Challenge of Misdemeanors in New York

When it comes to background checks in New York State, employers face a distinctive challenge posed by the state's complex court system.   New York's approach to criminal records stands out as significantly different from the rest of the country, particularly in how misdemeanor cases are handled.

County courts exclusively hear felony cases, departing from the norm in most other states, which handle both felonies and misdemeanors. Instead, misdemeanor cases in New York are processed and recorded at the local, town, or city court level. This separation creates a significant blind spot in traditional background check processes.

If an employer conducts a standard county criminal search in New York and discovers a misdemeanor conviction, it's important to understand the context. Such a result typically indicates the case initially began as a felony charge but was later reduced to a misdemeanor during the legal proceedings. However, this scenario is the exception rather than the rule.

The implications of this system are profound for employers. A traditional county-level criminal record search in New York will miss misdemeanor convictions - specifically, those that were charged and adjudicated as misdemeanors from the outset. 

This gap in information can leave employers with an incomplete picture of an individual's criminal history.  The range of misdemeanors potentially missed in such searches is concerning.  These can include offenses such as:

• Assault

• Criminal possession of a weapon

• Criminal possession of controlled substance

• Criminal trespass

• Endangering the welfare of a child

• Forcible Touching

• Petit larceny

• Operating a Motor Vehicle Under the Influence of Drugs or Alcohol 

Many of these offenses, while not felonies, can be highly relevant to an employer's hiring decisions, especially for positions involving responsibility for others, handling of sensitive information, or representing the company publicly.  

Also, another New York curiosity is that crimes which other states classify as felonies are only classified as misdemeanors in New York. Some examples include:

• Possession of marijuana

• Issuing a bad check

• Driving without a license (First Offense)

• Resisting arrest (Non-Violent)

• Criminal trespass (First Offense)

• Solicitation (4th Degree)

• Harassment (First Offense)

For instance, an employer hiring for a childcare position would certainly want to know about any convictions related to endangering a child's welfare.  Similarly, a company hiring a driver would need to be aware of any DWI convictions, even if they're misdemeanors.

This unique aspect of New York's criminal record system underscores the importance of conducting thorough criminal background checks.  Employers who rely solely on county-level searches may be making hiring decisions based on incomplete information, potentially exposing their organizations to unforeseen risks.

Turnaround Time and Cost Hurdles

New York State’s court system impacts both the time required for checks and the associated costs, making it crucial for employers to understand these factors for efficient hiring processes and budget planning.

New York's judicial system is multifaceted, comprising supreme civil courts, supreme criminal courts, civil courts, and criminal courts in New York City, alongside an extensive network of county, district, city, town, and village courts across the state.  This complexity directly influences background check processes.

Turnaround times in New York can vary:

• County-level searches: Typically 3-5 business days, but can extend to 2-4 weeks in some jurisdictions.

• New York State Office of Court Administration (NYS OCA) search: Usually 1-3 business days, but at heavy volume times this can extend to 4-7 days.

These timeframes can be further extended if records need to be retrieved from archives or if courts are experiencing backlogs. In some cases, delays can stretch even longer.

The cost factor is equally challenging. New York's fragmented system often requires multiple searches to achieve comprehensive coverage.  The NYS OCA search, which provides statewide coverage, comes at a premium:

• County criminal searches: Range from $0 - $95 per county in NYS.

• NYS OCA search: $95 per name, most times with additional service fees.

For employers conducting background checks on multiple candidates, these costs can quickly add up, potentially straining hiring budgets. 

Moreover, the NYS OCA search, while comprehensive, has limitations. It only returns exact name matches and requires a full date of birth, which may not always be available to employers early in the hiring process.

Understanding these time and cost factors is crucial for employers in New York.  It allows for better planning of hiring timelines and budgets, ensuring that the process doesn't become a bottleneck in acquiring top talent.

Furthermore, consumer reporting agencies (CRAs) operating in New York must comply with state laws that limit the types of information they can report, adding another layer of complexity.

Given these challenges, engaging the services of an experienced background check provider with expertise in New York’s unique regulations, policies, and rules is critical. Commercial Investigations is an invaluable resource for our thousands of customers operating in New York.

New York Background Check Laws: A Compliance Maze

New York has a myriad of laws and regulations that employers must navigate when conducting background checks. 

Failure to comply with these rules can result in costly penalties and legal repercussions.

1. New York's Ban the Box Laws

New York's Ban the Box laws aim to give individuals with criminal records a fair chance at employment by delaying background checks and criminal history inquiries until the later stages of hiring.  Ban the Box applies in several key areas of New York, including New York City, Suffolk County, Westchester County, Buffalo, Rochester, and statewide for public employers.

Under these laws, employers are prohibited from including questions about criminal history on job applications and must delay such inquiries until after a conditional offer of employment has been made.  If a criminal record is discovered, employers must conduct an individualized assessment, considering factors such as the nature of the crime, time elapsed, and its relevance to the specific job duties. 

The hiring process in Ban the Box jurisdictions differs significantly from areas without such laws. Key differences include:

• Removal of criminal history questions from job applications.

• Delayed timing of background checks.

• More stringent procedures for using criminal history in hiring decisions.

Employers must also provide candidates with a written copy of inquiry results and allow them time to respond or provide additional information if adverse action is being considered based on their criminal history.

These regulations require employers to revise their hiring practices, including updating job applications, adjusting the timing of background checks, and training hiring managers on proper procedures. 

While these laws aim to reduce barriers to employment for individuals with past convictions, they also present compliance challenges, especially for employers operating across multiple jurisdictions with varying regulations. 

Proper implementation often requires careful attention to detail and may necessitate legal counsel to ensure full compliance with all applicable Ban the Box laws.

Other Relevant New York Hiring Laws

Beyond Ban the Box, employers must also ensure compliance with several other statutes impacting background checks, including:

2. New York Human Rights Law

This law prohibits discrimination in employment based on an individual's criminal history unless there's a direct relationship between the offense and the job, or if hiring would pose an unreasonable risk to property or public safety. 

Employers must conduct an individualized assessment, considering factors such as:

• The specific duties of the job.

• The time elapsed since the offense.

• The person's age at the time of the offense.

• Evidence of rehabilitation.

This law requires employers to balance public safety concerns with providing fair employment opportunities for individuals with criminal records.

3. New York Labor Law § 194-A (Salary History Ban)

This law prohibits employers from:

• Requesting or requiring salary history information from job applicants.

• Relying on salary history to determine whether to offer employment or what salary to offer.

• Retaliating against applicants who refuse to provide salary history.

The law aims to reduce pay inequities by ensuring that past salary discrepancies, which may have resulted from discrimination, don't perpetuate in future employment. 

Employers must base compensation decisions on factors like qualifications, experience, and market rates rather than salary history.

4. New York Corrections Law

Article 23-A of this law provides protections for individuals with criminal records. It requires employers to consider specific factors when making hiring decisions based on criminal history, including:

• The specific duties and responsibilities of the job.

• The bearing, if any, the criminal offense will have on the person's fitness or ability to perform job duties.

• The time that has elapsed since the criminal offense.

• The age of the person at the time of the criminal offense.

• The seriousness of the offense.

• Any information produced by the person regarding rehabilitation and good conduct.

• The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

This law encourages employers to make nuanced decisions about candidates with criminal records rather than implementing blanket exclusions.

5. New York City Fair Chance Act

In close relation to Ban the Box, the New York City Fair Chance Act is one of the most comprehensive and stringent regulations of its kind in the country.

It applies to employers with four or more employees in New York City and significantly impacts the hiring process. Key provisions of the Fair Chance Act include:

• Prohibiting inquiries about criminal history until after a conditional offer of employment.

• Requiring employers to provide applicants with a written copy of any background check results.

• Mandating a multi-step process before rescinding a job offer based on criminal history.

The Act requires employers to conduct an individualized assessment of the candidate's criminal record using specific factors outlined in Article 23-A of the New York Correction Law. 

If an employer decides to revoke a job offer based on criminal history, they must provide the applicant with a written explanation and allow them at least three business days to respond.

This law goes beyond many other Ban the Box laws by also prohibiting inquiries about pending arrests and criminal accusations before a conditional offer. It also limits an employer's ability to consider non-convictions, such as sealed records, youthful offender adjudications, and cases resolved in favor of the individual.

Employers in New York City must be particularly vigilant in complying with the Fair Chance Act, as violations can result in significant penalties and potential lawsuits. 

The law aims to provide a fair opportunity for individuals with criminal histories to secure employment while still allowing employers to make informed hiring decisions based on relevant convictions.

6. Clean Slate

The Clean Slate Act, signed into law in November 2023, aims to automatically seal certain criminal records after a specified period, providing individuals with past convictions a better chance at employment and housing opportunities. 

Key provisions of the Clean Slate Act include:

• Automatic sealing of eligible misdemeanor convictions after 3 years from sentencing.

• Automatic sealing of eligible felony convictions after 8 years from sentencing or release from incarceration.

• Exclusion of certain serious offenses from automatic sealing.

• Requirement for individuals to remain conviction-free during the waiting period.

For employers, this law means that sealed records will not appear in most background checks. However, some exceptions exist for sensitive positions or those required by law to consider sealed convictions.

The Act requires employers to:

• Update hiring policies to reflect the new law.

• Train hiring personnel on the implications of sealed records.

• Ensure that automatically sealed convictions are not considered in hiring decisions unless specifically permitted by law.

The Clean Slate Act represents a significant shift to balance public safety with opportunities for rehabilitation and reintegration. As the law's implementation is phased in overtime, staying informed about updates and adjusting accordingly will be crucial.

7. Marijuana Regulation and Taxation Act (MRTA)

This act legalized recreational marijuana use in New York and provides employment protections for cannabis users. Key points for employers are:

• Not discriminating against employees for legal cannabis use outside of work hours and off company property.

• Still maintaining a drug-free workplace policy and prohibiting on-the-job impairment.

• Treating cannabis similarly to alcohol in terms of employment policies.

• Not testing for cannabis unless required by state or federal law, or if an employee exhibits specific symptoms of impairment.

Employers need to review and potentially revise their drug policies and testing procedures to comply with this law.

8. Fair Credit Reporting Act (FCRA) and New York Fair Credit Reporting Act (NY FCRA)

The Fair Credit Reporting Act (FCRA), a federal law, significantly impacts hiring practices nationwide, including in New York. However, New York employers must navigate an additional layer of complexity due to the state's own Fair Credit Reporting Act (NY FCRA), which often imposes stricter requirements.

Under the federal FCRA, employers must:

• Obtain written consent before conducting a background check.

• Provide a clear and conspicuous disclosure that a background check may be obtained.

• Follow specific adverse action procedures if considering not hiring based on information in a background check.

The NY FCRA builds upon these federal protections, granting consumers additional rights. Unlike the federal law, which only requires disclosure of file contents, the NY FCRA gives consumers the right to receive an actual copy of their credit report. This report is free if the individual has been denied credit, employment, or insurance due to report information within the past 30 days.

Both laws outline procedures for disputing and correcting inaccurate information, but the NY FCRA goes further by allowing consumers to add a 100-word statement to their file if a dispute remains unresolved. The state law also imposes stricter reporting time limits, with most adverse information restricted to a seven-year reporting period, except for bankruptcies, which can be reported for ten years.

Uniquely, the NY FCRA requires agencies to notify previous report recipients about corrected errors upon the consumer's request, adding an extra layer of protection for job applicants.

For New York employers, compliance means adhering to whichever law is more stringent on any given point. This creates a complex regulatory environment that aims to balance fair hiring practices, protection of individual rights, and employers' interests in maintaining safe and productive workplaces.

To navigate this intricate legal landscape, employers must stay informed about both federal and state laws, implement careful hiring procedures, and maintain clear processes for handling disputes and corrections in employment screening.

Partnering with experienced background check providers familiar with New York's unique requirements can be crucial in ensuring compliance and making fair, informed hiring decisions.

Your New York Background Check Partner

Commercial Investigations has established itself as a leader in navigating the complexities of New York background checks.  With years of experience and a deep understanding of the state's unique legal landscape, we offer unparalleled expertise to employers seeking comprehensive and compliant background screening services.

Our services stand out from competitors in several key ways:

• Faster turnaround times through our established relationships with courts across New York.

• Access to our proprietary New York State criminal record search, Cursory Indicator New York™.

• Industry-specific expertise, particularly in sectors like healthcare, finance, and education.

We've helped numerous organizations streamline their hiring processes, reduce time-to-hire, and make more informed decisions while maintaining full compliance with New York's laws.

Tired of navigating New York's complex background check landscape alone? Let CI be your guide. Our team is ready to provide you with a customized screening solution that meets your unique needs.

Don't settle for one-size-fits-all approaches – get the New York expertise you deserve. Reach out now at (518) 271-7546 or contact us to request a personalized demo of our services.