What is a Background Check In New York State?
A background check in New York State is the research process adopted by authorized organizations, persons, and agencies to confirm that a person has provided comprehensive and accurate information about their identity, education, references, previous employment, criminal records, and any other relevant history. In the state of New York and other parts of the county, a background check is also known as a background investigation.
What is the purpose of Background checks?
Background checks are due diligence investigations often conducted to provide an organization with sufficient and legal confidence in the potential employee, especially if the position for which they are offered is a position of trust that may also include interactions with existing and prospective clients.
What Types of organization run Background Checks?
Many New York organizations run background checks, including volunteer organizations, government agencies, firearm licensees, health care providers, and childcare service providers. Most of these organizations would conduct investigations into persons they employ or intend to employ.
The investigation into the potential employees’ past enables the employer in New York State to see their antecedents and determine if hiring them would be a high risk that could be potentially dangerous or could result in financial loss or liability. For instance, if an organization intends to hire a driver, it is important they look into the driver’s record to ensure there are no past convictions for driving while intoxicated (DWI). If they skipped the background check and the driver gets into an accident while intoxicated, the company may be held liable, especially if the person had a previous DWI record.
Why do Employers Conduct Background Checks?
Employers carry out background checks for different reasons, some of which may include:
Workplace safety - Organizations in New York such as schools, or any other services involving minors, as well as airports, hospitals and such, may have stricter policies for background checks because of the nature of services provided and the potential danger that could result from hiring the wrong person.
Competency - The potential employee’s claims on their educational background and work experience is linked to their suitability for a specific position and their expected level of performance. To avoid the cost and time of going through the hiring process for a single position multiple times, the employer in New York may contact previous employers and confirm the potential employee’s credentials to ensure they are for the position.
Prevention of fraud and false pretenses. Organizations can identify forged certificates, stolen identities, and false information by conducting proper investigations and avoid the resulting possible damage to their reputation and standards from hiring a fraud.
Why do Landlords conduct Background checks?
Most landlords conduct tenant screening to ensure the safety of their property and residents. The ability of the potential tenant to pay rent as at when due is also an important consideration.
What are the different types of Background Checks?
There are various types of background checks. The most common ones include:
- Criminal record check
- Driver’s history
- Drug test
- Professional license and certificate
- Identity and social security verification
- Credit check
- Sexual offender registry
- County civil records
Some employers go further to look at the social media records and activities of potential employees.
Are Background checks Legal?
Yes. Background checks are regulated by the state of New York and must be done in compliance with applicable laws. Some of the information researched in a background check are public, meaning they are accessible to any member of the public, although employers and other agencies tend to dig deep in carrying out their due diligence. Conducting and using background checks in New York State can be very complex, requiring strict legal compliance, most organizations engage third parties to carry out these verifications.
Any form of background checks on a person, the employer, landlord or an organization must abide by the applicable New York State laws as well as relevant regulations governing the conduct of background checks in the state. The main law to consider is the Fair Credit Reporting Act in New York, the New York State Human Rights Law (HRL) and the New York Corrections Law. Compliance with the Federal Fair Credit Reporting Act (FCRA) is also essential because complying with the state laws may not adequately provide the cover for the duty of care in conducting and using background checks, required by law.
Federal Fair Credit Reporting Act has a wider reach than all the other laws and applies to any employer engaging the services of a third party or a Consumer Reporting Agency to provide information about a potential or a current employee. Consumer Reporting Agencies are described as persons or organizations which gather, assess and provide consumer reports on regulated information about individuals for a fee.
Both Article 23-A of New York Corrections Law and the HRL apply to all individuals, corporations, companies, organizations in the private sector and public sector organizations including local and state government agencies, commissions, boards and departments doing business and carrying the State of New York and employing ten (10) or more persons. The New York Labour Law and the New York State General Business Law may also come into play when applying Article 23-A,
Each of these laws is equally of great importance and the organization may incur huge liabilities for failure to meet the specific compliance requirement of one, even when they have fully complied with the provisions of the other.
It is important to note that not all background screening organizations are compliant with the Fair Credit Reporting Act (FCRA).
Those organizations are described as non-FCRA compliant and any person engaging their services must take necessary steps such as obtaining proper authorization, disclosure and pre-adverse action notices, opportunity to dispute the findings, to ensure they themselves or their company are in compliance with the requirements under the FCRA.
What do Organizations look for in Background Checks?
What information an organization looks for in a background check is unique to the organization conducting it, its industry or services provided and the intended use. Most regular employers may be interested in an employee’s or potential employee’s criminal records, credit history, identity verification, education, and work history. Others may have to conduct drug screening and look into the driver’s record, especially if the position requires handling a vehicle.
Certain organizations are legally bound to look into a sex offender registry, especially where it concerns handling minors. Civil records may be of interest to employers for the purpose of analyzing the type of person or the general behavior of the employee or potential employee. For instance, a litigious person may be considered troublesome and could potentially raise legal issues against the organization. A landlord, for instance, may be concerned with the credit history of a potential tenant and history of property damage in their previous place of residence.
What can be revealed in a background check?
Different types of checks reveal different types of information. For instance, the information contained in a criminal record check would be different from the information collected from the Department of Motor Vehicles (DMV). The following information may be included in these types of checks:
Criminal background: An employer my look into a person’s criminal records at different levels, including within the state, county, and federal level. High caliber organizations such as government agencies may run international background checks. Organizations hiring persons who had lived, worked or were educated outside of the United State may also be interested in the person’s criminal records outside the country. Information collected from a criminal record background check may include:
- Arrest records
- Court records
Arrest records are not a reliable confirmation of the conviction for a crime, it would be discriminatory to base a decision affecting a potential employee adversely on arrests. In New York State, an employer may only inquire about records of convictions. The earlier mentioned New York state law prohibits inquiries about charges that did not lead to a conviction or juvenile offenses and sealed convictions.
Convictions an employer is legally permitted to inquire into include felony or misdemeanor convictions but is subject to the restrictions placed on the usage of such convictions in making employment decisions, under the NYSHRL and New York Corrections Law. An employer in New York state can only rely on an employee or applicant’s convictions in making employment decisions if
One or more of such convictions is directly related to the employment or position sought or hold or are being considered for. The law defines direct relations with employment very strictly that the criminal conviction must be so connected that it would have an impact on the person’s ability to perform one or more responsibilities or duties that are paramount to the job.
Employing or retaining the person would pose an unreasonable risk to property, the public or the safety or welfare of other persons.
To determine if the conviction has met either or both criteria set out in the law, before making an adverse employment decision, the organization must weigh eight factors provided in Article 23-A of the NYCL
- New York state’s public policy aimed at encouraging hiring those with previous convictions
- The link between the past conviction and specific duties and responsibilities that are primarily related to the job
- Whether the conviction is significant to the applicant’s ability to perform those duties and responsibilities
- How much time has elapsed since the conviction(s) for the offence or offences
- The age of the employee or applicant at the time of the offense(s)
- The gravity of the offense (s)
- Any information provided by the employee or applicant regarding their rehabilitation, and
- The legitimate interest of the employer to protect property and the safety and welfare of the general public and individuals.
If a New York State law prohibits employment of people with convictions for certain offenses in specific types of jobs, the employer is bound to exclude such persons from employment into those specific jobs and positions and it would not be discriminatory.
Other steps an organization must take to ensure compliance with laws governing the use of criminal background checks include:
- Providing a disclaimer that convictions do not automatically exclude an applicant from consideration or mean a termination of employment.
- Ensure a copy of Article 23-A, which can be found here, is included with any background check authorization form.
- Notify the employee or applicant of the intention to conduct a background check.
Education background checks may be conducted to verify an applicant or employee’s credentials and claims on their resume or other documents presented to the employer. it is one of the first steps to determining whether they possess the skills, certifications, licenses and qualifications they claim they do and avoid negligent hiring claims. An education verification may reveal
- The name and address of the institution (s) attended by the employee or applicant
- Degree, qualifications, licenses or certifications obtained
- Year(s) attended
- Year of graduation
- Transcripts may also be obtained
- Accreditation information on the institution attended helps the employer identify certifications from unaccredited institutions or diploma mills. Diploma mill are considered very popular and are described as organizations which offer certificates to interested persons for a fee without legitimate education.
An important law to consider when conducting education verification is the Family Educational Rights and Privacy Act (FERPA)
Identity and Social Security Number (SSN) verification. Employers would want to make sure that the employee or applicant is who they claim to be and avoid hiring a fraud or an identity thief. Registered third parties or employers with Employer Identification Numbers (EIN) may verify employee’s SSN for wage reporting purposes only through the Social Security Number Administration (SSA). Pre- employment verification may also be conducted in line with applicable social security number privacy laws and under the Consent Based Social Security Number Verification (CBSV) Service. The SSN verification search may reveal consistency or lack thereof between the name, date of birth and the SSN number provided by the applicant and the SSA records.
Credit Background check allows interested persons to check a subject’s financial responsibility over a period of time, A landlord may be interested in a tenant’s rent payment history and an employer hiring for a position that involves finances and financial integrity such as accounts and investments would be concerned about the employee or applicant’s credit history. A credit background check may reveal some identifying information such as the subject’s social security number, their names and previous names. Information about credit card debt, mortgage, student and other loans will likely appear on a credit background check as well as history of repayment on loans and debts incurred. Provisions of the federal and New York State Fair Credit Reporting Act apply when conducting a credit background check. Inquirers for whatever purpose must notify the subject of the intention to conduct credit background checks and only use the information obtained in a fair and equitable manner.
What is a Ban the Box State?
Generally New York state as a whole is yet to pass an official Ban the Box Law, except for Westchester County New York which passed a Fair Chance to Work Law, effective from March 3, 2019. However, the HRL and The NYCL provide ample protection for the employee and applicant background check subjects .
How Far Back Can An Employer Do A Background Check?
Except for specific special circumstances permitted by law, New York State follows the federal FCRA, limiting the look back period for a background check consumer report to no further than 7 years.
What Happens If Someone Fails A Background Check?
A person is likely to fail a background check if they have submitted false or incomplete information and the employer through a background check discovers the actual fact, an adverse decision will likely result from finding the applicant or employee has been dishonest or not forthcoming. Even with a criminal record or a bad credit report, it’s possible to get a favourable consideration from an employer.
Can An Employer Deny A Person Employment Based on Criminal Records?
An employer can make adverse decisions with respect to employing a person with a previous conviction only if the crime for which they were convicted is directly related to the job position for which they are being considered or if hiring them would pose a risk to property and persons.
However, New York State Laws provide ample protection for employees, applicant’s and other persons who are the subject of a background check. The laws are specific on how background checks should be conducted and used.
If for any reason a person has failed a background check or they believe their criminal record may have affected the outcome of their job interview, they must understand their rights under New York State Laws and take necessary steps to obtain redress.
What protections do the laws offer for a person subject to a Background check?
- Employers are required to post copies of Article 23-A and other laws prohibiting discirmination in conspicuous places within their organizations so employees and applicants can have easy access to it. They are also required to provide a copy to an applicant who is the subject of a background investigation and receive an acknowledgement from the subject that they have received it and agree to a background investigation.
- Employers are prohibited from asking questions about arrests, sealed criminal records or youthful offenses therefore if an employer asks open questions such as, ‘’have you ever plead guilty to an offence? or have you ever been convicted of any offence?’’ They would be violating the law.
- Employers must consider the eight factors provided under Article 23-A, therefore, a conviction 7 years or older cannot be a primary reason for making employment decisions against a person even if the conviction meet the two criteria mentioned earlier. The employer must also consider the gravity of the offence. For instance, a petty theft and a high scale financial fraud would rank differently. Consideration of information regarding the rehabilitation and good conduct of the subject since their conviction, is also vital and required.
- Before taking actions based on a background investigation report, the employer must notify the employee or applicant of the intention to take such actions. The employer must provide a written report of criminal conviction(s) submitted by the background screening company to the employee or applicant and give the applicant a minimum of three business days to respond to the report and provide explanations or fix possible errors while the position remains open for them. Under the federal law, the employer is required to attach a document entitled ‘’ A summary of your rights Under the Fair Credit Reporting Act’’ and the contact information for the CRA.
- The employee or applicant is entitled to a written statement providing reasons for adverse decisions or denial of employment based on their previous convictions. The employer must provide a written statement within 30 days of the applicant’s request.
- If the employer has followed the law and weighed the eight factors as provided under the law, the employer is still required to provide legitimate reasons that are not connected to the prior conviction for rejecting the applicant. A conviction in itself is not a legitimate reason to deny a person employment under New York State Laws.
In summary, the laws restrict employers from generalizing when making hiring decisions or reviewing background information relating to employees. Decisions should be based on proper analysis and consideration of each individual's peculiar circumstances.
If a person believes their employer has not complied with relevant laws and have made adverse decisions based on their background checks, they may contact the New York State Labor Department to understand their options. The law prevents the employer from terminating employment on the basis that the employee file a complaint with the Labor Department.
The New York Division of Human Rights has the authority to look into compliants of unlawful discrimination due to previous convictions filed against private organization within 1 year of the alleged discrimation.
Complaints of unlawful discrimnation against government organizations must be initiated in the state court.
If the employee or applicant believes they have been denied a position based on their credit report, they may request a free copy of their credit report from any of the major credit bureaus, free of charge within 60 days of the denial. The employee or applicant may be able to identify, correct errors and provide proof of error if they receive the credit report on which the denial was based.
Can A Person Refuse a Background Check?
Yes. Before conducting a background check, it is mandatory to obtain the consent of the person who is the subject of the background investigation. However, refusal to sign the consent form may raise other questions of whether the applicant has something to hide that may exacerbate the potential risk of hiring them. Ultimately, the employer may decide not to hire a person who has refused to give consent for a background check.
Do I Need To Run a Background Check On Myself?
Yes. Information contained in a background report may prove very useful. Background checks are now considered commonplace in the State of New York, most employers conduct background checks before hiring. An intending employee may benefit from conducting a self investigation, to see what an employer could possibly uncover about them. It provides them with the opportunity to
- Correct inaccurate information or errors that may be found in any documents or records about them and may become accessible to a prospective employer.
- Anticipate and prepare in advance for questions that may arise during any specific screening or employment process and provide accurate and reliable information when requested.
- Collect personal information and create an up to date record and report that may be useful for different purposes.
How to Run a Personal Background Check
There are two main ways to run a personal background check. One is personally sourcing for and collecting information from various public or organizations such as courts, Department of Motor Vehicles, Alma mater, etcetera or online on third party sites which provide access to public records. The second is to engage the services of a company that specializes in running such investigations in compliance with the FCRA.
To run a personal background check, a person may decide to look for the same information a potential employer, landlord or other organizations may be interested in, such as criminal record, driving record, social security and identity verification, education records and such. Typically, information required to initiate a background check will include:
- Full or legal name
- Date of birth
- Social security number
- Current address
- Past employment record
- Institution attended
An interested person may obtain background verification information online on third party websites taking note of their terms and conditions and bearing in mind that their services are non FCRA services and cannot be used for correction of errors in a person’s record or provide reports suitable for employment, tenant or credit background checks.
Credit Report Agencies (CRAs) provide different types of FCRA compliant background check packages. An interested person may choose one that suits their needs and pay for that service. The background report once ready would be mailed to the requesting person or organization.
How Long Does A Background Check Take?
It depends on a lot of factors such a response time from the various organizations from which information is collected and compiled, It also depends on the scope and types of records and information of interest, however, a typical background check is expected to be concluded between 2 to four business days if there are no unforeseeable barriers or factors that may cause a delay.