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Guidance For Pre-Employment Background Checks

Employers – including cooperatives, condominiums, and landlords – often ask what types of background checks they can carry out on job applicants or prospective employees. In today’s legal environment, knowing what types of questions can properly be asked and what kinds of answers can be used to disqualify someone from employment is a complex topic that requires careful balancing of the employer’s needs and the applicant’s rights.  For example, if a job involves handling money and the employer wants to check an applicant’s credit history, the requirements of the Fair Credit Reporting Act must be followed.

If an employer in New York State wishes to scrutinize an applicant’s criminal record, it must comply with Article 23-a of New York’s Correction Law, which prohibits discrimination in hiring against a person who has a criminal conviction, but is otherwise eligible and qualified for employment, unless the employer can establish a specific connection between the offense and the specific employment sought by the individual or that hiring such individual would create an unreasonable danger to property or safety. In making this decision, the employer is to consider the nature and gravity of the offense(s); the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought.  In addition, the New York Human Rights Law prohibits considering an applicant’s previous arrests – as opposed to convictions – in making employment decisions.

Within New York City, recent legislation (the “ban-the-box law”) prohibits private-sector employers from making any inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been extended.  Significantly, under the law’s definition of “inquiry,” employers are prohibited from asking an applicant prohibited questions, whether oral or written, and even from searching publicly available sources to obtain information about an applicant’s criminal history.  Only after the conditional offer of employment has been made may the employer conduct the criminal history check.  If the employer then determines the applicant’s criminal history warrants rescinding the offer, it must perform its analysis under the Correction Law; provide the applicant with written copies of the criminal history inquiry and employer’s Correction Law analysis, supporting documents, and an explanation of the employer’s decision to take an adverse employment action; and hold the position open while giving the applicant at least three business days to respond to the written analysis.

Checking an applicant’s social media history (such as Facebook posts, Twitter tweets, etc.) may seem like a routine precaution, but can create liability if the employer is not careful.  For example, the applicant’s social media might reveal that the applicant is a member of a legally protected class, even if the employer was not otherwise aware of this fact.  An applicant who is not hired may claim that the decision resulted from unlawful discrimination – even though the non-hiring really had nothing to do with discrimination.  In addition, New York’s “off-duty law” (Labor Law § 201-d) protects applicants’ and employees’ lawful recreational activities undertaken on their own time.  Protected activities include political activities, such as campaigning or fundraising; legal recreational activities (defined broadly to include virtually all non-compensated leisure-time activities); legal use of consumable products (e.g., smoking) off company property and outside working time; and union membership or union-related activity.  Employers generally may not consider these activities in making employment decisions.

A number of reputable firms perform background checks that comply with federal and state guidelines. These firms also provide the requisite paperwork and authorization forms.  Employers who wish to check their prospective employees’ backgrounds are well-advised to utilize one of these firms in doing so.  If a question arises regarding whether particular information is a proper basis for an employment decision, the issue should be discussed with counsel before the decision is made and documented.