7 Reasons Why Employers Detest Conducting Background Checks in New York

Nick Fishman

Employment Background Checks in New York

Today, to quote Billy Joel, I’m in a New York State of mind.  The Empire State has got it all from my favorite city in the world, New York City, to Buffalo, Rochester and Albany. They’ve got the best pizza in the world, Buffalo Wings, Garbage Plates (see definition at the bottom of this post) and Wegmans (shout out to my friends from Rochester). And while the state has plenty to brag about, one thing is for sure: conducting employment background checks in New York is a huge pain in the backside.

Warning: None of this information should dissuade you of the notion that you have to conduct employment background checks.

Regardless of the hoops you have to jump through, you still have an obligation to protect your employees, your customers and your business.  If that’s not enough, the cost of defending a negligent hiring claim and the average verdict in such cases, let alone the public safety concerns.

No further proof of this responsibility is necessary than a 2012 bus crash in New York which left 15 people dead. While this was just an accident, check out the details NBC-4 in New York uncovered when they investigated the driver.

Williams’ [the driver] criminal record includes the June 2003 arrest for driving with a suspended license. He was also charged with aggravated unlicensed operation of a vehicle and possession of the police scanners. Police records show Williams was also charged with three felonies and two misdemeanors as an adult, including pleading guilty to one charge of manslaughter. Documents show Williams served prison time from 1992 through the time he was paroled in 1994 on the manslaughter charge. He also had past arrests for grand larceny and criminal possession of stolen property in 1998 and went back to prison, documents show.  He was released from parole in 2004. Another past arrest was for “intent to obtain transportation without paying” — which records show he pleaded guilty to a violation back in 1987.

I don’t know where this is in the courts now, but I can only imagine what the cost of this settlement is going to be.  So again, you still need to conduct background checks, but we can still always commiserate.

7 Reasons Why Employers Detest Conducting Background Checks in New York

1. The New York Office of Court Administration (OCA)- For 14 counties in the state of New York (including each borough in New York City), this is the only game in town when it comes to criminal background checks.  Sounds great until you realize the exorbitant $70.00 court access fee charged for the privilege of searching through PUBLIC RECORDS.

2. No Access to Lower Court Records- New York lower courts do not allow individuals or companies to search for criminal records. For the vast majority of counties, lower court records can only be found by conducting an OCA Search.  So even if you are able to conduct court research in a non-OCA county, you won’t have access to misdemeanor records unless you use the OCA.  Oh, and the OCA recently announced that they will no longer provide a criminal history for any individual whose only conviction was a single misdemeanor charge more than ten years prior to the date of the search request.  And once again, you are exposed to the access fees.

3. More Paperwork- So you’ve complied with all of the federal screening laws and provided all of the appropriate notifications.  You’re done, right?  Not in New York where employers must comply with the New York State Correction Law Article 23-A, Section 753 “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses which requires that employers who are using a criminal record to consider the following factors:

    • The duties of the job
    • The relationship between the offense and the position sought
    • How long ago the conviction occurred
    • Applicants age at the time
    • Seriousness of offense
    • Rehabilitation and good conduct

Employers must post a copy of Article 23-A in place of business in a conspicuous area. They must present a copy of this document to the subject of a background check when consent to conduct a background check is requested. Furthermore, the document must be given to the subject of a background check once again in the event that a criminal conviction is revealed on the background check.

4. Employers may not ask about any arrests or charges that did not result in conviction unless that case is still pending.

5. Employers with 10 or more employers cannot deny employment based on a conviction unless it directly relates to the job responsibilities or would be an unreasonable risk to property, the public or personal safety.

6. Misdemeanor convictions older than 5 years cannot be considered unless the person has been convicted of another crime within the last 5 years.

7.  Two major cities, Rochester and Buffalo, already have ‘ban the box’ laws and New York city has introduced a similar ordinance is currently in committee.

What’s an Employer to Do?

  • Don’t Skip the Background Check. As galling as the OCA fee is, you still need to make an informed hiring decision and insulate your organization from risk.
  • Familiarize yourself with the Article 23-A requirements.  We spend a lot of time educating our clients about how to comply with this law and it’s important to know that the state is aggressively pursuing violators.
  • Revisit your hiring guidelines and background screening policies to ensure they properly address the state’s requirements about what can be considered and what cannot.

Wondering What a Garbage Plate Is?

Short Definition: A Garbage Plate is a heart attack waiting to happen at any minute.

Long Definition: A Garbage Plate is a combination of two selections of cheeseburgerhamburgerred hotswhite hotsItalian sausagechicken tenderfish (haddock), fried hamgrilled cheese, oreggs; and two sides of either home friesFrench friesbaked beans, or macaroni salad. On top of that are the options of mustard and onions, and hot sauce, a sauce with spices and slowly simmered ground beef. The dish is served with Italian bread and butter on the side.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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