New York City recently enacted two new background check laws, the Stop Credit Discrimination in Employment Act and the Fair Chance Act. For NYC employers and multi-state employers with operations in NYC, these important highlights will be of great interest:
- NYC employers may not state that applicants will be subject to a background check until after a conditional offer has been made, including on a job posting, application form or verbally.
- Prior to a conditional offer, employers may state verbally or in writing that employment references and education/licenses will be verified.
- NYC employers and multi-state employers with operations in NYC should review their hiring portals and documents and update to conform to the requirements of these new laws.
- Until further guidance, NYC employers and multi-state employers with operations in NYC should tailor FCRA disclosures and authorizations to eliminate reference to credit checks if the applicant will not be subject to a credit check.
- If an applicant is applying for a position that falls under an exception, the employer must advise the applicant in writing of the exception that applies before conducting the credit check.
- Employers must keep an “exemption log” noting the applicants and positions that fall under an exemption.
- NYC’s background check laws apply whether or not the background check is conducted by a third-party vendor. Thus, if a Human Resources Representative conducts a check of court records or otherwise gathers information on an applicant’s credit and conviction history, the check must comply with NYC law. It also applies to information on credit and conviction history gathered through reference checks.
- If an employer asks an applicant post-conditional hire to disclose conviction history and learns through a background check that the candidate failed to disclose a conviction, the employer must follow the Fair Chance Act process and give the candidate a copy of the background check and notice of intent to take adverse action even if the reason for the adverse action is dishonesty/failure to disclose.
New York City continues to play a leading role in establishing best practices in hiring, and we will certainly share these and other industry developments as they emerge.
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