Do you conduct background checks on your employees?  What do you check for and why?  Do you have clearly defined criteria on what types of information gleaned from a background check will be disqualifying for a potential new hire?

New York law, at the state level and particularly at the city level, sets a range of parameters on whether, when and how employers can consider an individual’s criminal history in the context of employment decisions.  Augmenting the strictures New York imposes on employers, a new state law that takes effect November 16, 2024, called the Clean Slate Act will seal certain categories of records at various intervals, so that it will no longer be possible for employers to learn of certain types of criminal history.  Employers that are unfamiliar with the range of New York protections in this context may unwittingly create liability issues for themselves through their hiring practices.

Start with the Basics – Arrest Records

There is a very substantial difference between an arrest record – which means someone has been charged with a crime – and a conviction record – which means someone was found guilty beyond a reasonable doubt by a jury or pled guilty to a crime.  Arrest records reflect a law enforcement officer’s suspicions.  Historically those suspicions have been found to be targeted disproportionately based on factors like race and gender, which are protected characteristics under the laws prohibiting discrimination in employment.  As a result, the Equal Employment Opportunity Commission has long taken the position that organizations should not be checking for arrest records when they run background checks on job applicants.

Putting Conviction Records in Context

New York employers can legally check conviction records, but when evaluating the results of a criminal history check, state law requires that employers consider the relevance of the underlying conduct to the position for which the individual is being hired, consistent with a range of factors delineated in Article 23-A of the state Correction Law.  Those factors include:

• the state’s public policy in favor of hiring those previously convicted of criminal offenses;
• the specific duties and responsibilities of the job;
• the extent to which the criminal offense will impact the applicant’s fitness or ability to do the job;
• how much time has elapsed since the conviction;
• how old the person was at the time of the offense;
• the seriousness of the offense;
• evidence of rehabilitation and good conduct; and
• the employer’s interest in protecting its property and the safety and welfare of specific individuals or the general public.

The Correction Law precludes employers from rejecting job applicants based on their criminal history unless the prior conviction bears a direct relationship to the specific job or reflects that employing the individual would involve an unreasonable risk to property, or to the safety or welfare of specific individuals or the general public.

In other words, context counts.  When considering someone for a job as a bank teller, it would be hard to justify rejecting the candidate based on a past conviction for driving while intoxicated.  If the conviction was for theft, however, there might be a strong reason to disqualify the individual for the bank teller job.

Clean Slate Act Means Less Access

Once the Clean Slate Act takes effect, misdemeanor records will be sealed effective three years after the date the individual was released from incarceration or, if the individual was not incarcerated then from the date of sentencing.  Felony records will be accessible for a longer period and sealed eight years after release from incarceration, provided the individual does not then have another criminal charge pending and is not under probation or parole.  Certain convictions, including Class A felonies for which a maximum sentence of life imprisonment could be imposed, and convictions requiring sex offender registration, are not eligible to be sealed at any point in time.

Employers will, therefore, remain able to screen for the most egregious criminal behaviors, regardless of how far back the conviction occurred.  For lesser offenses, the state law will effectively take the decisionmaking process out of employers’ hands because older historic information will be unavailable.

New York City Regulates the Process

New York City added an extra layer of complication for employers several years ago by requiring a bifurcated process for conducting background checks on job applicants.  Except in limited circumstances, New York City law precludes employers from conducting a criminal history check until after all non-criminal qualifications have been verified and the individual has received a “conditional offer” (meaning an offer that is subject only to a criminal history check, Department of Motor Vehicles check, and/or medical exam, if applicable).  Only after an applicant clears other screening and receives a conditional offer can the employer check an applicant’s criminal history and ask about criminal convictions (but not ask about sealed or juvenile convictions, or minor infractions).

An employer in New York City cannot reject an applicant based on adverse criminal history without first completing several further procedural steps, called the “Fair Chance Process.”  The applicant needs to be provided with written notice of the contemplated adverse action and a copy of the information the employer is relying on, be given some time to respond, and be asked to provide information regarding the individual’s rehabilitation or good conduct.  The employer is required to evaluate the candidate based on the Article 23-A factors listed above, and ultimately determine whether there is a direct relationship between the criminal history and the job or unreasonable risk to property, safety, or welfare of individuals or the general public.  If the employer concludes there is such a direct relationship or unreasonable risk, the employer must provide the basis for its analysis to the applicant, allow the applicant time to respond, and consider any additional information provided by the applicant before declining to proceed with the hire.  The process is intentionally complex, multi-layered and lumbering so as to discourage employers from using criminal history as a disqualifying factor.

Is Criminal History Really That Important

The conditions and limitations that New York State and City have imposed all beg the question – is it really worth it to check criminal history?  For some positions, such as in schools and childcare settings, state licensing laws may require checking criminal history, and similarly so for other regulated industries.  Even then, New York City imposes on employers elements of its Fair Chance Process, such as additional notice and disclosure requirements.

Some employers have concluded that verifying criminal history is simply not worth the effort.  Greyston Bakery, for example, which makes the brownies in Ben & Jerry’s ice cream products, has been very public in touting the success of their “open hiring” model.  Job applicants are hired simply in order from a list and trained on the job, with no prior background checks, interviews or specific credentials.  The Body Shop follows largely the same process (just confirming ability to stand for a full shift and lift 50 pounds) for hiring entry-level seasonal employees.  Both report much lower turnover, significantly lower hiring costs, and better morale.

Many jobs cannot be done by just anyone, and instead require formal training, skills, and experience that do not neatly align with the open hiring model.  Even where those credentials must be considered, some employers may want to consider taking a step back to evaluate other elements of their screening practices, and whether they are unduly disqualifying or simply offer too little benefit relative to the time and expense required.  The New York State and City legislatures seem to hope that, at least with respect to criminal history, employers will have reason to reconsider their existing practices.

By Tracey I. Levy