State of New York to Withhold Certain Criminal Records
April 4, 2014
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.
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.