Background Check Discrimination

Employers frequently use information contained in background checks to make hiring and firing decisions. Now, thanks to new federal and state laws, employers must follow statutory procedural rules whenever they make such decisions. Employers can no longer base a hiring decision solely on the contents of a background check. Employees have the right to know when a background check is used against them, and must be able to respond to the employer's decision.

New York and Federal Fair Credit Reporting Acts

Many employers, especially large companies, now contract with third-party credit reporting agencies (“CRA’s”) to gather information about job applicants. Both New York and federal fair credit reporting acts require employers to inform employees and applicants prior to seeking information about their credit or criminal history from a CRA or taking any adverse employment action based on such information.

Employers must notify employees and applicants before acquiring their background information from a CRA. If the employer decides to take any adverse action against the applicant or employee on the basis of such a report, they are required (1) to notify the person prior to taking the action, (2) to provide them with a copy of the report on which the decision was based, and (3) to provide this information to the applicant or employee in time for them to give them a reasonable opportunity to challenge and correct inaccuracies in the report.

These laws protect employees and applicants from having adverse action taken against them on the basis of incorrect information in their credit and criminal records and guarantee the opportunity to review and correct background information about an employee before the employer can take any adverse employment action.

New York Correction Law Article 23-A

Reintegrating arrestees and criminal offenders back into society is a vitally important public policy goal, especially because over 65 million Americans have criminal records. Individuals must be able to find gainful employment in order to return to reintegrate into society, yet c riminal records are enormous obstacles when job hunting. New York law forbids employers from denying employment to applicants or taking adverse action against employees solely on the basis of past criminal convictions. Employers are allowed to investigate an applicant’s criminal history as part of their pre-employment screening, and to make decisions based on the results of this investigation, but New York law specifies that the employer may only deny employment to applicants, or take adverse action against employees, if:

  1. There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
  2. the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Employers must evaluate the relevance of a person’s past criminal conduct to their job duties, and the reasonability of the risks involved in employing them, based on a list of considerations enumerated in the statute: (1) the benefit of hiring person previously convicted of criminal offenses; (2) the specific duties of the person’s job; (3) the bearing, if any, the person’s criminal offense or offenses would have on his fitness or ability to perform one or more such duties or responsibilities; (4) the recency of the criminal offenses; (5) the age of the person at the time of occurrence of the criminal offenses; (6) the seriousness of the offense or offenses; (7) information about the person’s rehabilitation and good conduct; (8) the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. An employer’s denial of employment is “arbitrary and capricious,” and unlawful, if the employer failed to consider all eight of these factors before denying employment or taking adverse employment action based on an applicant’s criminal record.

In addition, at the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial. N.Y. Corr. Law Article 23A §754

The attorneys at The Harman Firm, LLP are experienced litigators who have litigated cases of fair credit reporting violations and unlawful criminal history discrimination. Contact us if you believe you have experienced such unlawful actions.

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