State of New York to Withhold Certain Criminal Records

Nick Fishman

Background Checks in New York

This week, we received notification that as of April 1, 2014, the New York Office of Court Administration (OCA) 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.

This is important information for anyone who conducts employment background checks in the state of New York to know, because none of the state’s lower courts (those which would hold misdemeanor records) allow direct access to individual county criminal history records and instead mandate the use of the OCA for research. Criminal history records in these counties are only accessible through the OCA. Therefore, if your candidate was convicted of one misdemeanor offense more than 10 years ago, that information will no longer be reported.

Is There Really A Lot of Exposure Here?

While one misdemeanor from over 10 years ago might not seem like a big deal, let’s dig a little deeper here. What if the person moved out of state  and was convicted of other charges thereafter? Employers won’t be able to see that there has been a pattern of criminal behavior. This also could have ramifications for those in regulated industries such as FDIC insured institutions that cannot hire those with certain crimes.

What Can Employers Do?

Unfortunately, I don’t see a consistent way around this other than asking candidates’ to self-report convictions including misdemeanors that took place over 10 years ago. And as we all know, the EEOC would have a field day with that one.

Interesting Timing?

I have no way of knowing whether this is coincidence or not, but my colleague, Angela Preston recently posted a story about the New York State Attorney General reaching agreement with four background screening companies for sending automatic rejection letters to candidates with criminal records. We thought this was interesting because the companies would have only done this if they were instructed to do so by their clients, but clearly the Attorney General isn’t thrilled with how some in his state are using background checks. Perhaps this is a concerted effort to limit employers’ ability to use information he feels is irrelevant.

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.
Nick Fishman
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  • John Beaudette

    I realize I am probably a minority voice in the industry, but I applaud the new NY law that says the OCA cannot report single misdemeanors over ten years old. Identifying patterns of criminal behavior are important, especially patterns within the recent ten years — which would be discerned by a comprehensive criminal check. Also, the FDIC recently narrowed the offenses that are an automatic bar to employment, so it is rare that one 10+ year misdemeanor would be a FDIC disqualification. Lastly, if four of the largest background companies have/had arrangements with their clients to automatically send out rejection letters to applicants with criminal records (even if there is some logic behind the adjudication), then we can expect to see more and more restrictions and conditions on the use of criminal records. Automation, in this circumstance, is not our friend.

  • Tien Doan

    I totally agree with you John. A single misdemeanor conviction over 10 years ago is fairly insignificant and thus this restriction by NY should have minimal impact on the background check business. The FDIC concern can also be mitigated by an employer informing the FDIC of NY’s limitation on disclosure of criminal convictions.

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  • John D.

    Lets not forget the employers that are parents looking for a nanny or for companies that sell children’s products. Yes, how insignificant is ten years then?

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