Risky Business: Considering an Applicant or Employee’s Criminal Conviction Information

Employers face the dual struggle of protecting the safety of their workforce and their products while simultaneously complying with laws addressing background check information. On one hand, it can be a risk to hire a candidate with a concerning criminal background. On the other hand, missing a technical step in the various laws could lead to devastating and expensive liability.  

Despite the recent uptick in discrimination complaints regarding criminal conviction information, many employers want to consider an applicant or employee’s criminal background check. This article summarizes the various laws that come into play so that your company can successfully navigate using criminal conviction information.

Ban-the-Box Laws  
Hundreds of cities and counties nationwide have adopted ban-the-box laws that prohibit employment applications from asking whether a candidate has ever been convicted of a crime. Rochester’s ban-the-box law prohibits employers from asking applicants to describe their criminal history during the application process. Employers may ask about the criminal conviction information only after an “initial interview” or offer of employment conditioned on the outcome of a background check. The ordinance defines “initial interview” as “direct contact, by phone or in person, between the applicant and the prospective employer to discuss the employment being sought or the applicant’s qualifications.” If the employer does not conduct an interview, the employer must inform the applicant whether a background check will be conducted before employment begins and must wait until after a conditional offer before conducting the criminal background check or asking about the criminal conviction history. Rochester’s ordinance applies to private employers located in the City of Rochester with at least four employees in a position where their primary place of work is the City of Rochester. 

The City of Buffalo has passed a similar law applicable to employers with 15 or more employees.

Article 23-A of the New York Correction Law
After an employer obtains criminal conviction information either through a background check or after asking the candidate about his or her criminal conviction history, the employer must analyze the criminal conviction information in accordance with Article 23-A of the New York Corrections Law. Under Article 23-A, an employer cannot deny employment unless the employer (1) draws a direct relationship between the applicant’s criminal record and the prospective job, or (2) shows that employing the applicant “would involve an unreasonable risk to the property or to the safety of specific individuals or the general public.” To find that either option exists, the employer must evaluate conviction information with the following eight factors:

The Article 23-A factors are:

  1. That New York public policy encourages the licensure and employment of people with criminal records;
  2. The specific duties and responsibilities of the prospective job;
  3. The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;
  4. The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;
  5. The age of the applicant when the events that led to her or his conviction occurred;
  6. The seriousness of the applicant’s conviction history;
  7. Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct; and
  8. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Article 23-A also requires employers to provide a copy of Article 23-A itself, if the employer receives criminal conviction information from a background check by a consumer reporting agency.

Case law has shaped how employers must document and evaluate the criminal conviction information to prove that it has considered all the factors and that the conviction is indeed related to the position sought.

New York City Fair Chance Act
Employers in New York City must also comply with the New York Fair Chance Act, which makes it illegal for most employers to ask about an applicant’s criminal conviction record before making a job offer. Advertisements, applications and interview questions cannot include inquiries into an applicant’s criminal record. 

After a job offer, and after conducting the Article 23-A analysis discussed above, if the employer wants to revoke the offer based on the existence of a criminal record, the employer must explain why to the applicant using a Fair Chance Notice. The employer must give the applicant three business days to respond. Employers must also provide the applicant with a copy of the criminal conviction information the employer relied upon, including a third-party consumer report, public records or an internet search with a copy of the documents. In summary, the Fair Chance Act process requires the employer to:

  1. Provide the applicant a written copy of the background check or other inquiry into the applicant’s criminal history;
  2. Provide the applicant with a copy of its Article 23-A analysis (Fair Chance Act Notice); and
  3. Give the applicant at least three (3) business days from the receipt of the inquiry to respond to the employer’s concerns.

Fair Credit Reporting Act
If the employer obtains the criminal background check information from a third-party consumer reporting agency, the employer must also comply with the Fair Credit Reporting Act requirements. These entail:

  1. Providing the applicant with a pre-adverse action notice if the employer believes it will take adverse employment action based on the results of the consumer credit report;
  2. Along with the pre-adverse action notice, providing a “Summary of Your Rights Under the Fair Credit Reporting Act”;
  3. Providing the applicant with at least five (5) days within which the applicant may dispute the results of the background check; and
  4. Providing the applicant with an adverse action notice which informs the applicant of the employer’s adverse action and other information.

The laws regulating how an employer uses criminal conviction information are complicated, overlapping and can be confusing. Please contact the Harter Secrest & Emery Labor and Employment group for help in navigating this aspect of your hiring process. 

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