CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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December 29, 2008

Change In New York Law Related To Background Checks

Effective February 1, 2009, employers must post a copy of Article 23-A of the New York Corrections Law in the workplace and must provide a copy of the law to applicants and employees in certain situations related to a background check.

First, the General Business Law has been amended to require that an employer that requests an "investigative consumer report" must provide a copy of Article 23-A of the New York Corrections Law to the applicant or employee for whom the report is generated.The General Business Law already defines an "investigative consumer report" as "a consumer report or portion thereof in which information on a consumer's [or applicant's] character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information."Thus, it appears that all background checks in which references are checked would fall under the purview of the new law.

Second, employers are required to conspicuously post a copy of Article 23-A in the workplace.

Third, employers are required to provide a job applicant or employee with a copy of Article 23-A anytime a report it receives from a consumer reporting agency contains any criminal conviction information.

Finally, the New York State Executive Law has already been amended, effective September 4, 2008, to provide greater legal protection to those who employ employees with criminal records.Specifically, Executive Law ¤ 295(15) now creates a rebuttable presumption to exclude evidence of the employee's prior incarceration or conviction in any case alleging that the employer was negligent in hiring or retaining the employee.The presumption is only available if the employer in good faith decides to hire the individual after considering the following factors:

  • (a) The public policy of New York encourages the employment of persons previously convicted of criminal offenses.
  • (b) The specific duties and responsibilities necessarily related to the license or employment sought.
  • (c) The relationship between the criminal offense and the employee's fitness or ability to perform such duties.
  • (d) The length of time that has elapsed since the criminal offense.
  • (e) The age of the person at the time of the criminal offense.
  • (f) The seriousness of the offense.
  • (g) Any information regarding rehabilitation and good conduct.
  • (h) The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.

If you should have any questions regarding these new laws, please contact us.