Guidelines When Using Criminal Background Checks
Criminal background check rules for employers are more extensive now. New amendments for the New York City’s Fair Chance Act (FACA) went into effect on July 29, 2021.
The law about conducting criminal background checks previously only applied to job applicants who had received a conditional job offer. However, the new amendments also provide protections for employees against adverse employment actions. An example would be terminating the employee based on a pending arrest or criminal charge.
Before doing so, employer must first evaluate the “relevant fair chance factors.” The relevant fair chance factors include:
- New York’s public policy of providing work for individuals with prior criminal offenses
- Considering the specific duties and responsibility of the job
- Whether the criminal offense or alleged criminal offense would affect the individual’s ability to perform the duties and responsibilities of the job
- How much time elapsed since the occurrence of the criminal act
- The age of the person at the time of the criminal offense occurred
- The seriousness of the offense
- Information as to the individual’s rehabilitation and good conduct
- The employer’s legitimate interest in protecting property and the safety and welfare of the specific individuals and general public
Situations Where Employers Must Not Inquire About Prior Criminal History
It is vital for employers to know they must never inquire about an employee’s criminal history regarding situations that involve the following:
- Non-convictions (including arrests that were not prosecuted, acquittals, dismissed charges, expunged cases and vacated convictions)
- Cases adjourned in contemplation of dismissal
- Youthful offender cases
- Violations (such as disorderly conduct)
- Non-criminal offenses (with the exception of driving infractions)
- Sealed cases
Seek Legal Advice about Criminal Background Check Rules
The above is a brief overview of what changed for employers regarding criminal background checks. Other changes also apply. If you have questions, consult with our attorneys at Stephen D. Hans & Associates, P.C. We are glad to provide you with experienced legal guidance. Call (718) 275-6500 to arrange an appointment.