Employers and businesses working in New York State must consider both federal and state laws regarding pre-employment screening and background checks when looking for new employees. The following is a complete overview of New York background check laws and laws pertaining to pre-employment screening.
Employers and businesses in New York State need to adhere to certain rules and regulations regarding pre-employment screening and background checks. These rules and legislation apply to conducting more traditional background checks and general pre-employment screening of applicants, candidates, and / or new hires.
Typically when hiring new workers, employers begin the background check process with the pre-screening of applicants. However, there are laws in place to help protect employees from discrimination during this part of the job application process.
While there is no statewide “Ban the Box” law in New York, New York City does have the Fair Chance Act, which applies specifically to New York employers. Other municipalities in New York with Ban-the-Box laws include Buffalo and Rochester.
Under the New York City Fair Chance Act, employers in New York City are prohibited from, in most cases, inquiring as to an applicant’s criminal history before making a job offer.
In other words, employers may not (through ads, applications, or interview questions) ask about an applicant's criminal record. The protection ensures employers choose candidates based on qualifications.
In New York, employers need to maintain compliance with certain rules and regulations regarding an applicant’s salary history.
Under New York’s salary history and pay equity law, employers cannot ask job applicants to provide wage or salary history as a condition of employment. Employers are also prohibited from seeking such information from other sources, including current and former employees.
Current employees may voluntarily disclose past salary history and compensation from past employers.
While there is no statewide law regarding an applicant’s credit history in New York, New York City does have the Credit Check Law: For Employees, part of the New York City Human Rights Law, which applies specifically to New York employers.
Under the NYC Human Rights Law, employers may not take credit into consideration when making hiring decisions.
Furthermore, employers are also barred from running a credit check or hiring another company to perform a credit check. Employers are also prohibited from inquiring as to an applicant’s payment history or creditworthiness, credit standing, or how much credit he or she has.
Under New York State Cannabis Laws, employers may only drug test employees or applicants for cannabis if federal or state law requires drug testing or makes it a mandatory requirement of the position. This only applies to cannabis.
Businesses in New York must be aware of the rules and regulations regarding background checks in the state, on both a state and federal level.
New York employers may not discriminate against potential new hires (NYS Section 752) that have one or more criminal convictions unless:
Applicants found to have one or more criminal convictions should have the following things considered when a hiring decision is being made based on the “conviction directly relating to the position” (NYS Section 753).
These include:
If an employer does deny employment due to criminal history, the applicant must be allowed to ask for a reason for up to 30 days following the decision.
The FCRA is a federal law that also regulates background checks conducted by employers. Businesses regardless of state must maintain compliance with the FCRA.
Under this law, information collected in a background check may only be provided to those specified by the law. Employers that provide information to a reporting agency for a background check have certain legal requirements as well. These include:
In addition, employers that use the information for credit, insurance, or employment purposes must notify the employee when an adverse action is taken as a result of a background check.
In New York, there are typically three primary areas included in a background check. These include:
Typically, criminal history reports will include the following information:
Sealed records are NOT reportable, and there are some New York laws limiting what criminal information is obtainable.
Effective November 16th, 2024, the New York Clean Slate Act went into effect, which is a state law aimed at increasing employment opportunities for individuals with criminal convictions by requiring certain criminal records to become sealed automatically after a required waiting period that is dependent on the offense (misdemeanor or felony).
Employment verification entails confirming the employment history of the applicant. Information usually includes:
Education verification typically entails confirming the educational history of an applicant. Information can include:
Under New York State law (NYS Section 380-J) employers in the state are barred from obtaining certain criminal history information during a background check.
Specifically, the law prohibits consumer reporting agencies (CRAs) or other agencies conducting background checks, from reporting the following information:
Under the Fair Credit Reporting Act (FCRA), New York background checks can go back up to seven years. However, New York does have some more strict restrictions on how far back certain information can go (see section above).
How long a background check in New York State will take depends on the method in which it is requested.
Requests submitted through the Office of Court Administration’s direct access site typically are returned the next business day. However, this information only provides New York records. It will not include out-of-state information or employment and education records.
The best way to quickly conduct background checks in New York is by finding a New York Payroll Service that can connect you to an all-in-one background check provider.
If you are a New York-based employer looking for help with conducting your background checks, then look no further. An experienced New York Payroll Company, like EBC HCM, offers New York HR Services and HR Software that can help make backend processes like background checks a breeze.
Get started with an easy and comprehensive New York Background Check.