New Workplace Posting and Background Check

January 22, 2009

On February 1, 2009, new legislation amending New York’s General Business Law and Labor Law will take effect. This legislation imposes additional obligations on New York employers with respect to conducting background checks on applicants and existing employees and also imposes an additional workplace posting requirement.

The new legislation relates to Article 23-A of the New York Correction Law (“Article 23-A”), which requires employers to weigh a number of factors with respect to an employee’s or applicant’s criminal conviction before making an adverse employment decision such as terminating an employee or declining to hire an applicant.

Background Checks

When conducting background checks on applicants or existing employees, employers must adhere to the Fair Credit Reporting Act (“FCRA”). The FCRA applies to background checks that include information requested from a credit reporting agency. Under the FCRA, an employer is obligated to notify the applicant or employee in writing that a report will be obtained and must receive the individual’s written authorization to obtain such report. If after obtaining the report, the employer decides to take an adverse employment action, the employer must then provide the individual with a copy of the report that the employer obtained and a description of the individual’s rights under the FCRA.

Under the new legislation, in addition to the notices already required by the FCRA, New York employers must now provide a copy of Article 23-A to an applicant or employee when: (1) a consumer report was requested with respect to an offer of employment, and (2) when the consumer reporting agency provides a consumer report that contains criminal conviction information.

Posting Requirement

The new legislation also requires all New York employers to post a copy of Article 23-A in an accessible and conspicuous location within the work place, such as a break room or kitchen area. A copy of Article 23-A suitable for posting can be obtained here.

What Employers Should Do

Employers should review and revise their employment policies and practices to ensure compliance with Article 23-A and the new legislation. Further, although not required in every instance in which an employer conducts a background check, employers may want to provide a copy of Article 23-A to employees and applicants as a matter of practice each time the employer requests a background check.

If you have any questions or comments about this Alert, please feel free to contact any of the attorneys in our Litigation Group.