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New York Background Check Laws

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New York Employment Screening Laws

Employee Background Checks and Drug Screening Trends White Paper

Employers that are either located in New York or hiring New York residents must abide by the Federal FCRA, and applicable New York state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with New York state laws. This page also contains steps an end-user must take to stay in compliance with New York state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on New York state laws, please consult your legal counsel.

Employment Background Check Laws In New York:

New York Executive Law §296(16): Unlawful discriminatory practices.

Info Cubic Ninja's summary

Employers may not consider criminal history information that did not result in a conviction when making employment decisions. Using non-conviction information for employment decisions is strictly prohibited.

It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, further, that no person shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law. The provisions of this subdivision shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law; provided further that the provisions of this subdivision shall not apply to an application for employment or membership in any law enforcement agency with respect to any arrest or criminal accusation which was followed by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law.

ew York City Administrative Code §8-107(24): Employment; consumer credit history.

Info Cubic Ninja's summary

Employers in New York City are prohibited from obtaining an employee’s or an applicant’s credit history information, and using that information to make an employment decision, unless running a credit check is required by State or Federal law.

(a) Except as provided in this subdivision, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to request or to use for employment purposes the consumer credit history of an applicant for employment or employee, or otherwise discriminate against an applicant or employee with regard to hiring, compensation, or the terms, conditions or privileges of employment based on the consumer credit history of the applicant or employee.

(b) Paragraph (a) of this subdivision shall not apply to:

(1) an employer, or agent thereof, that is required by state or federal law or regulations or by a self-regulatory organization as defined in section 3(a)(26) of the securities exchange act of 1934, as amended to use an individual’s consumer credit history for employment purposes;

(2) persons applying for positions as or employed:

(A) as police officers or peace officers, as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation;

(B) in a position that is subject to background investigation by the department of investigation, provided, however, that the appointing agency may not use consumer credit history information for employment purposes unless the position is an appointed position in which a high degree of public trust, as defined by the commission in rules, has been reposed.

(C) in a position in which an employee is required to be bonded under City, state or federal law;

(D) in a position in which an employee is required to possess security clearance under federal law or the law of any state;

(E) in a non-clerical position having regular access to trade secrets, intelligence information or national security information;

(F) in a position: (i) having signatory authority over third party funds or assets valued at $10,000 or more; or (ii) that involves a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer.

(G) in a position with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer’s or client’s networks or databases.

(c) Paragraph (a) of this subdivision shall not be construed to affect the obligations of persons required by section 12-110 of this code or by mayoral executive order relating to disclosures by city employees to the conflicts of interest board to report information regarding their creditors or debts, or the use of such information by government agencies for the purposes for which such information is collected.

(d) As used in this subdivision:

(1) The term “intelligence information” means records and data compiled for the purpose of criminal investigation or counterterrorism, including records and data relating to the order or security of a correctional facility, reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual, or investigation or analysis of potential terrorist threats.

(2) The term “national security information” means any knowledge relating to the national defense or foreign relations of the United States, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States government and is defined as such by the United States government and its agencies and departments.

(3) The term “trade secrets” means information that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and (c) can reasonably be said to be the end product of significant innovation. The term “trade secrets” does not include general proprietary company information such as handbooks and policies. The term “regular access to trade secrets” does not include access to or the use of client, customer or mailing lists.

(e) Nothing in this subdivision shall preclude an employer from requesting or receiving consumer credit history information pursuant to a lawful subpoena, court order or law enforcement investigation.

New York City Administrative Code §8-107(25): Employment; inquiries regarding salary history.

Info Cubic Ninja's summary

Employers and their agents may not inquire or seek to obtain an applicant’s salary history. This is prohibited at all stages of the employment process. Employers may only confirm an applicant’s past salary if the applicant voluntarily discloses that information without being prompted to disclose that information by the employer.

(a) For purposes of this subdivision, “to inquire” means to communicate any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history, but does not include informing the applicant in writing or otherwise about the position’s proposed or anticipated salary or salary range. For purposes of this subdivision, “salary history” includes the applicant’s current or prior wage, benefits or other compensation. “Salary history” does not include any objective measure of the applicant’s productivity such as revenue, sales, or other production reports.

(b) Except as otherwise provided in this subdivision, it is an unlawful discriminatory practice for an employer, employment agency, or employee or agent thereof:

1. To inquire about the salary history of an applicant for employment; or

2. To rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract.

(c) Notwithstanding paragraph (b) of this subdivision, an employer, employment agency, or employee or agent thereof may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant’s resignation from their current employer.

(d) Notwithstanding subparagraph 2 of paragraph (b) of this subdivision, where an applicant voluntarily and without prompting discloses salary history to an employer, employment agency, or employee or agent thereof, such employer, employment agency, or employee or agent thereof may consider salary history in determining salary, benefits and other compensation for such applicant, and may verify such applicant’s salary history.

(e) This subdivision shall not apply to:

(1) Any actions taken by an employer, employment agency, or employee or agent thereof pursuant to any federal, state or local law that specifically authorizes the disclosure or verification of salary history for employment purposes, or specifically requires knowledge of salary history to determine an employee’s compensation;

(2) Applicants for internal transfer or promotion with their current employer;

(3) Any attempt by an employer, employment agency, or employee or agent thereof, to verify an applicant’s disclosure of non-salary related information or conduct a background check, provided that if such verification or background check discloses the applicant’s salary history, such disclosure shall not be relied upon for purposes of determining the salary, benefits or other compensation of such applicant during the hiring process, including the negotiation of a contract; or

(4) Public employee positions for which salary, benefits or other compensation are determined pursuant to procedures established by collective bargaining.

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

New York Ban the Box Laws

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the applicant has attended their first interview.

This Ban the Box law applies to the following jurisdictions: Buffalo, New York City, Rochester.


Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Court Fees:

County: Court Fee: County: Court Fee: County: Court Fee:
Albany $95.00 Allegany $95.00 Bronx $95.00
Broome $95.00 Cattaraugus $95.00 Cayuga $95.00
Chautauqua $95.00 Chemung $95.00 Chenango $95.00
Clinton $95.00 Columbia $95.00 Cortland $95.00
Delaware $95.00 Dutchess $95.00 Erie $95.00
Essex $95.00 Franklin $95.00 Fulton $95.00
Genesee $95.00 Greene $95.00 Hamilton $95.00
Herkimer $95.00 Jefferson $95.00 Kings $95.00
Lewis $95.00 Livingston $95.00 Madison $95.00
Monroe $95.00 Montgomery $95.00 Nassau $95.00
New York $95.00 Niagara $95.00 Oneida $95.00
Onondaga $95.00 Ontario $95.00 Orange $95.00
Orleans $95.00 Oswego $95.00 Otsego $95.00
Putnam $95.00 Queens $95.00 Rensselaer $95.00
Richmond $95.00 Rockland $95.00 Saint Lawrence $95.00
Saratoga $95.00 Schenectady $95.00 Schoharie $95.00
Schuyler $95.00 Seneca $95.00 Steuben $95.00
Suffolk $95.00 Sullivan $95.00 Tioga $95.00
Tompkins $95.00 Ulster $95.00 Warren $95.00
Washington $95.00 Wayne $95.00 Westchester $95.00
Wyoming $95.00 Yates $95.00

Summary of Rights:

New York Consumers Have the Right to Obtain a Security Freeze

You have a right to place a “security freeze” on your credit report, which will prohibit a consumer credit reporting agency from releasing information in your credit report without your express authorization. A security freeze must be requested in writing by certified or overnight mail. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that using a security freeze to take control over who gets access to the personal and financial information in your credit report may delay, interfere with, or prohibit the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, government services or payments, insurance, rental housing, employment, investment, license, cellular phone, utilities, digital signature, internet credit card transaction, or other services, including an extension of credit at point of sale. When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report to a specific party or for a period of time after the freeze is in place. To provide that authorization you must contact the consumer credit reporting agency and provide all of the following:

  1. the personal identification number or password;
  2. proper identification to verify your identity;
  3. the proper information regarding the party or parties who are to receive the credit report or the period of time for which the report shall be available to users of the credit report; and
  4. payment of any applicable fee.

A consumer credit reporting agency must authorize the release of your credit report no later than three business days after receiving the above information.

EFFECTIVE SEPTEMBER FIRST, TWO THOUSAND NINE, A CONSUMER CREDIT REPORTING AGENCY THAT RECEIVES A REQUEST VIA TELEPHONE OR SECURE ELECTRONIC METHOD SHALL RELEASE A CONSUMER'S CREDIT REPORT WITHIN FIFTEEN MINUTES WHEN THE REQUEST IS RECEIVED.

A security freeze does not apply to circumstances in which you have an existing account relationship and a copy of your report is requested by your existing creditor or its agents or affiliates for certain types of account review, collection, fraud control or similar activities.

If you are actively seeking credit, you should understand that the procedures involved in lifting a security freeze may slow your application for credit. You should plan ahead and lift a freeze either completely if you are shopping around, or specifically for a certain creditor, before applying for new credit. WHEN SEEKING CREDIT OR PURSUING ANOTHER TRANSACTION REQUIRING ACCESS TO YOUR CREDIT REPORT, IT IS NOT NECESSARY TO RELINQUISH YOUR PIN OR PASSWORD TO THE CREDITOR OR BUSINESS; YOU CAN CONTACT THE CONSUMER CREDIT REPORTING AGENCY DIRECTLY. IF YOU CHOOSE TO GIVE OUT YOUR PIN OR PASSWORD TO THE CREDITOR OR BUSINESS, IT IS RECOMMENDED THAT YOU OBTAIN A NEW PIN OR PASSWORD FROM THE CONSUMER CREDIT REPORTING AGENCY.

Court Cases:

KEY COURT DECISIONS
Court Case Issue Outcome Employer Limitation/ Action

Jones v. Halstead Mgmt. Co., LLC (2015)

Halstead Management revoked Jones’ offer of employment before he received proper adverse action notice from either Halstead or the CRA they were using to obtain their consumer reports. Halstead received a consumer report from their vendor that showed Jones had a criminal history when Jones, in fact, had no criminal history. This was found during the reinvestigation process, but Jones conditional offer was already revoked and an employment decision already made.

Halstead moved for Summary Judgment stating that the applicant did have the opportunity to dispute the information and they did not actually make a final hiring decision before the pre-adverse action notification was sent out. However, the Court noted that the letter that the applicant received explicitly stated that the conditional job offer was revoked. Jones ultimately disputed the criminal history information that was reported on his consumer report, and he was in fact correct, that he had no criminal history.

Employers must have strict procedures in place to comply with the adverse action process. Halstead claims that even though their pre-adverse action letter stated that the conditional job offer was revoked, it was actually still a valid offer pending the outcome of the reinvestigation. The language they used did not accurately convey this message. It is absolutely imperative that proper adverse action is taken when a consumer report is used for a negative hiring decision.

Wheeler, et al. v. Wegmans Food Markets Inc

Plaintiff alleges that Wegmans did not properly notify employees and applicants that a background screening would be performed on them, thus violating the FCRA. Plaintiff claims the online authorization and disclosure did not make it clear background screenings would be performed and an applicant’s right to obtain a copy of their report.

Dismissed. Wheeler was the lead plaintiff for this class action lawsuit.

Employers must ensure when using online forms that the disclosure and authorization form are separate from any other form and that the language complies with the FCRA.

Keels v. GEO Group, Inc

Plaintiff alleges that GRO group did not comply with the FCRA’s adverse action requirements. Furthermore, their vendor Accurate Background Inc did not notify the plaintiff when reporting out negative information on his consumer report as required by section 613 of the FCRA.

Certified Class Action. Keels is the lead plaintiff in this class action lawsuit.

Employers must ensure that they follow proper adverse action procedures when making a negative hiring decision.

Ernst v. DISH Network

Plaintiff claims that DISH did not follow the disclosure and authorization requirements set forth by the FCRA, and made hiring decisions based on background screenings labeled “high risk”, “low risk”, or “review.” DISH did not actually view the full screening reports, just the label that it came with.

Settlement of $1.75M. Ernst was the lead plaintiff in this class action lawsuit.

Employers must ensure that they are following strict procedures adhering to the disclosure and authorization requirements set forth by the FCRA. Additionally, employers cannot make hiring decisions based on how their vendor labels reports. The full report must be reviewed and if a negative hiring decision is made, proper adverse action must be followed.

Ernst v. Sterling Infosystems

Plaintiff claims that Sterling Infosystems did not provide consumers with copies of their background screening reports when they requested them. This barred consumers for correcting any inaccuracies within their reports.

Settlement of $4.75M. Ernst was the lead plaintiff in this class action lawsuit.

Employers should follow proper adverse action procedures as required in the FCRA as far as notice and providing the applicant with a copy of their report. CRAs should always allow a consumer a copy of their background screening report and allow them the ability to correct any inaccuracies.

Gambles v. Sterling Infosystems Inc.

Plaintiff claims Sterling prepared a report that contained outdated, duplicative, misleading, and adverse information about him. This violates the FCRA’s requirement of having reasonable procedures to ensure maximum possible accuracy.

Case Pending.

Employers must review the entire background screening report on an applicant before making a hiring decision, and must follow proper adverse action procedures if making a negative hiring decision. CRA’s must ensure they have strict procedures in place to ensure maximum possible accuracy.

Navigators Insurance Co v. Sterling Infosystems

Sterling claims that Navigators Insurance Co would not cover them for the losses incurred during a class action lawsuit, which breached their insurance contract.

Court found in favor or Sterling. Court ordered Navigators to pay Sterling pursuant to their insurance contract.

Employers and CRA’s alike should have proper insurance coverage in the event of a lawsuit. Insurance coverage should include the coverage of damages including settlements.

Rodriguez v. Calvin Klein, Inc. et al.

Plaintiff claims that Calvin Klein did not follow proper adverse action procedures when denying him employment. Plaintiff claims he was denied employment based on inaccuracies in his background, and was not properly notified or given a chance to correct those inaccuracies. Once he corrected the information, his position was already filled.

Settlement of $716.4K. Rodriguez was the lead plaintiff in this class action lawsuit.

Employers must follow strict procedures to ensure they are using proper disclosure and authorization requirements, as well as, proper adverse action requirements as set forth by the FCRA.

Kelly v. Brooklyn Events Center, LLC

Plaintiff alleges that the employer did not follow the correct adverse action process. Plaintiff alleges they never received a copy of their report or proper notifications including their rights.

Case Pending.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

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