SSA “No-Match” Letters Strike Again

The Social Security Administration (SSA) has once again begun the practice of sending “no-match letters” to employers.  The SSA sends no-match letters (or more formally known as Employer Correction Requests) to employers with at least one employee whose filed W-2 contains a Social Security number and name combination that does not match the SSA’s records.  The purpose of sending the no-match letter is to advise employers that certain corrections must be made to enable the SSA to properly post employees’ earnings to the employees’ corresponding SSA records.  The no-match letter will provide the employer with the employees’ names and Social Security numbers that do not match SSA’s records.

The SSA began its practice of sending no-match letters in 1993.  However, the SSA stopped sending no-match letters in 2012.  Now that the SSA has reinstated its practice of sending no-match letters, and based on the current presidential administration’s pledge to increase workplace immigration enforcement, employers should consider it a top priority to contact an attorney to help if they receive such a letter.  Although discrepancies leading the SSA to find a “no-match” can arise from ordinary events, such as a marital name change, unreported name changes, typographical errors, and incomplete or inaccurate employer records, such inconsistencies may be indicative of an employee using a false identity.

Employers must know how to appropriately respond to a no-match letter.  For example, employers may violate the Immigration and Nationality Act’s anti-discrimination provisions should the employer request unnecessary or excessive documentation from employees relating to the verification of an employee’s eligibility to work in the U.S.  An employer may also be liable for an improper action such as firing or suspending an employee because he or she was flagged in a no-match letter.  It is important for employers to know that an employer may not require employees to physically show their Social Security card for purposes of wage reporting.  Employers should also be wary of how they respond to a no-match letter, since employers may be vulnerable to lawsuits based on discrimination for an over-encompassing response.  Hence, employers should adopt a written policy outlining the procedure for responding to no-match letters and the process to maintain records of the responses.

While the SSA recognizes that a “no-match” is not a conclusive finding that an employee is not authorized to work in the U.S., no-match letters alert employers of a possible issue.  Should an employer receive a no-match letter, it would behoove the company to consider the ramifications of failing to respond to the letter.  In the case of an I-9 audit by Immigration and Customs Enforcement (ICE), employers will be asked to produce any records relating to the receipt of a no-match letter and evidence as to how the employer responded.  ICE will consider a response addressing the no-match issues as evidence of good faith compliance in the event of an audit or raid.

How can employers take proactive measures to protect themselves as a result of the return of no-match letters?  Employers should first check their records to ensure they have accurately entered the employee-provided information.  Then, should they find a discrepancy, ask the employee to verify their Social Security number, spelling of their name, or if they changed their name.  This will enable employers to proactively address a no-match letter should they receive one.  For steps beyond this, legal counsel should be sought.



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News Alert: Employers Must Provide 2017 and 2018 Pay Data by September 30, 2019

Employers, including federal contractors and subcontractors, with 100 or more employees have until September 30, 2019 to cull together and submit their pay and hours data from both 2017 and 2018 to the United States Equal Employment Opportunity Commission (EEOC).  On April 25, 2019, a federal judge in Washington D.C. ruled that employers are required to submit their pay/hours data as Component 2 of the EEO-1 form in order to reflect how much the employer paid employees of different ethnicities, races, and sexes to supplement the EEOC’s compilation of employers’ demographic data.

This decision follows the United States District Court for the District of Columbia’s prior ruling in March 2019 in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.) to restore the Obama administration’s efforts to eliminate race- and gender- based pay gaps by implementing the EEOC’s data collection.  In 2017, the Trump administration rolled back the pay data requirement due to the burden that the pay data paperwork placed on employers.

The requirement and deadline to submit the pay data were previously uncertain, but the EEOC proposed the September deadline when it appeared the District Court was going to reinstate employers’ pay data reporting obligation.  Despite the fact that the EEOC stated it was not equipped to collect the data, the EEOC decided it could meet the September deadline if aided by a third-party vendor.

What does this mean for employers?

Employers must now comply with the EEO-1 reporting requirements, which consist of two components: a demographic survey and a “snapshot” of employee pay data.  Employers should be familiar with Component 1, which is not affected by the District Court’s ruling.  Employers are required to submit their 2018 EEO-1 Component 1 demographic data by May 31, 2019.

Employers are now also required to file their EEO-1 Component 2 data for calendar years 2017 and 2018 by September 30, 2019.  Although the process is fairly straightforward, it could be a time-intensive task for employers who have not yet begun to gather their pay data.  Employers will be required to report the total-year W-2 wages (Box 1) and total-year hours worked for the employees reported in the Component 1 data filed for 2017 and 2018.

It is unknown what the EEOC will do with all of the Component 2 data employers submit.  As a precaution, employers should review all pay data prior to filing it to the EEOC.  Should employers become aware of any discrepancies, employers should speak with managers and supervisors to account for any inconsistencies.



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Review Your Handbooks, New York City Lactation Laws Went Into Effect

Two new laws passed by the New York City Counsel went into effect on March 18, 2019 regarding employers’ requirements to provide lactation rooms and accommodations for employees.  These new laws apply to employers with four or more employees in New York City and they require employers to provide lactation rooms to employees upon request, state the minimum standards the lactation room must comply with, and require employers to develop and implement new lactation policy and notice requirements.

These new laws now require NYC employers to provide two specific accommodations to employees who want to express breast milk during the work day: (1) a room where employees may express breast milk and (2) a refrigerator for employees to store breast milk during the workday.  The laws require employers to have a room for lactation that complies with the statutory standards (absent undue hardship) and develop and distribute a written lactation policy.

As per the legislation, a “lactation room” must be sanitary (not a restroom) and must be free from intrusion and shielded from the view of others.  The room must also contain at least one electrical outlet, a surface for employees to place personal items (i.e., a breast pump, etc.), and a chair.  The lactation room should be located near the employee’s workplace and near running water so employees may wash their hands and/or clean breast pump parts.

If an employer’s dedicated lactation room is also a space used for another purpose, the room shall be solely used as a lactation room when an employee needs to express breast milk.  Employers are obligated to provide notice to employees that employees who need to use the multi-purpose room to express breast milk will be given priority over employees using the room for other reasons.  Employers may want to use a room with a door that locks or to place a sign on the door stating the room is occupied and its occupants are not to be disturbed.

If an employer cannot provide a multi-purpose space or dedicated room available for lactation because providing one would pose an undue hardship on the employer, the employer is required to engage in a cooperative dialogue to ensure employees will be able to express breast milk at work.  Such accommodations may include creating a temporary lactation space, expressing breast milk in a shared space, expressing breast milk at the employee’s work station, or allowing longer breaks for employees to express breast milk.

Regardless of whether an employer has a dedicated room for lactation, employers may not unreasonably limit the amount of time or the frequency that an employee expresses breast milk.  If an employer provides compensated breaks, employees who use their break time to express breast mill will be compensated to the same extent and in the same way that other employees are compensated for break time.

The New York City Commission on Human Rights (CCHR) recently released three model lactation accommodation policies for employers located at the CCHR’s website: https://www1.nyc.gov/site/cchr/law/lactation.page.  The lactation policy that employers must implement must include a statement that employees have a right to request a lactation room and identify the process for doing so.  When drafting a lactation policy, employers must ensure they comply with the following statutory requirements:

  • Specify the means by which an employee may submit a request for a lactation room;
  • Require that the employer responds to a request for a lactation room within a reasonable amount of time that does not exceed five business days;
  • Provide a procedure to follow when two or more employees need to use the lactation room or dedicated space at the same time, including contact information for any follow up required;
  • State that the employer shall provide reasonable break time for an employee to express breast milk; and
  • State that the employer will engage in a cooperative dialogue with employees if the request for a lactation room poses an undue hardship on the employer.

The CCHR has provided a model lactation accommodation request form located on its website.

Employers should note that failure to maintain a lactation accommodation may result in penalties, fines or damages assessed by the CCHR.



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New York City Council Passes Bill Banning Pre-Employment Marijuana Drug Testing

It’s time for New York City employers to reconsider their pre-employment drug testing policies.  On April 9, 2019, the New York City Council (“Council”) passed a bill by a 40-to-4 vote that would prevent most employers from requiring pre-employment drug testing for marijuana.  This bill is the city’s latest efforts in a series of steps to legalize marijuana.

If this drug-screening bill is signed into law by Mayor Bill De Blasio, drug testing job applicants for marijuana as a condition of employment would become an unlawful discriminatory practice, and New York City would join Washington D.C., which also bars employers from testing for marijuana before a job offer is extended.  It should be noted that this bill appears to prohibit drug testing for marijuana at any point before an applicant is hired.

Employers should note that certain categories of employment, primarily areas of employment involving public safety, would be exempt from the law, including: (i) law enforcement personnel; (ii) positions requiring the supervision or care of medical patients, people with disabilities, or children; and (iii) individuals working on construction sites.  Applicants for positions subject to federal or New York State’s jurisdiction, meaning federal and state employees, or pilots, truck drivers and contractors, would also be exempt from this law.  In addition, the bill also sets forth that the Commissioner of Citywide Administrative Services would be permitted to make exceptions for positions of employment with the potential to significantly impact the health or safety of employees or members of the public.  Further, collective bargaining agreements containing pre-employment drug-testing provisions and federal and state regulations, grants or contracts requiring pre-employment drug-testing provisions would be unaffected by the new law.

Proponents of the bill argue that pre-employment drug testing for marijuana not only invades a potential applicant’s privacy but also impedes employment when there is little evidence to support the correlation between future employee performances and passing a pre-employment drug test.  Those who oppose the bill view the legislation as overreaching and unreasonably interfering with the private employers’ discretion when hiring screening potential job applicants.

If Mayor De Blasio signs the bill into law, the law will take effect one year following its enactment.



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Changes to the Paid Voting Time Law in New York State

On April 1, 2019, New York State passed a new yearly budget that includes a provision revising the amount of paid voting time employees may take to vote.

New York’s previous law on voting leave provided that if an employee had four consecutive hours either between the opening of the polls and the beginning of their working schedule, or between the end of their working schedule and the closing of the polls, they shall be deemed to have sufficient time outside of their working hours within which to vote and they did not require paid time off from work to vote.  If an employee’s work schedule did not permit them to have this four-hour window of time to vote, the employee could take up to two hours of paid time off either at the beginning or end of their schedule to vote.  In order to take the two hours of voting leave, the employee would need to notify their employer not more than ten nor less than two working days prior to the day of the election.

New York’s new voting leave law took effect immediately as of April 1, 2019, and includes several changes from the previous law.  First, the law now requires employers to provide up to three hours of paid time off that the employer will designate at the beginning or end of the employee’s working schedule, instead of granting only two hours of paid time off to vote be taken at the beginning or end of the employee’s working schedule.  Second, this new voting leave law removed the requirement that employees could not notify their employer to request voting leave prior to ten days before the election.  The new law now only requires that employees notify their employee of the need to take voting leave not less than two working days before the date of the election.  Perhaps the most important change to the previous law is that the new law eliminates the presumption that an employee has sufficient time to vote if they have four consecutive hours outside of their work schedule to vote.  This last change essentially guarantees employees requesting time off to vote must be granted ample paid time off to enable them to vote, up to a maximum of three hours.

Employers should note that the language of the law does not specify which elections qualify for paid voting leave under.  However, the broad language of this new law can undoubtedly be interpreted to include paid time off for employees to vote in all federal, state and local elections.  Employers must be sure to update their handbooks to comply with New York’s new voting leave law.



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A Welcomed Victory for the NY Home Care Industry

On March 26, 2019, the New York Court of Appeals issued a highly favorable decision for the New York home care industry.  The Court of Appeals reversed two Appellate Division decisions, Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc., and deferentially relied on the New York Department of Labor’s (NY DOL) interpretive guidance on the 13-hour rule for home health aides.  The Court of Appeals stated the Appellate Division failed to afford the NY DOL sufficient deference and held that sleep-in home health aides are only entitled to 13 hours of wages for a 24-hour shift, provided that they receive 8 hours for sleep breaks (5 hours must be uninterrupted) and 3 hours for meal breaks.

Prior to this decision, the NY DOL had not issued a permanent regulation on the 13-hour rule.  The NY DOL issued an emergency regulation in October 2017 which provided that sleep-in home health aides who work a 24 hour shift in accordance with federal Fair Labor Standards Act regulations are not required to be compensated for sleep times and meal periods.  The emergency regulation was in effect for 90 days, and the emergency regulation was renewed three times.  The NY DOL held a public hearing in July 2018 and accepted comments on the proposed regulation as part of the process to formally adopt the emergency regulation as a permanent regulation.  However, on September 26, 2018, the emergency regulation was nullified by the New York Supreme Court in Matter of Chinese Staff and Workers Assn. v. Reardon because the NY DOL could not cite to an “emergency” to justify issuing the regulation.  The NY DOL did not appeal this Supreme Court’s decision and has yet to issue a permanent 13-hour regulation.

The NY home care industry has anxiously awaited this Court of Appeals decision but can now expel a huge sigh of relief since the NY home care industry would likely crumble if the 13-hour rule was not upheld.  The courts deciding the numerous class action lawsuits filed against home care companies will be guided by this Court of Appeals decision as controlling case precedent.

NY home care employers should note that the Court of Appeals remanded to the lower the courts the issue of class certification claims involving home health aides who did not receive the required minimum time for sleep and meal breaks in their 24-hour shifts.  Hence, employers must ensure that they maintain accurate records of all meal and sleep periods for sleep-in home health aides.  PMP will continue to monitor this case and will provide updates on any further developments.



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Is Your Website ADA Compliant?

The Americans With Disabilities Act (ADA) prohibits discrimination against people with physical and mental disabilities in places of public accommodation such as restaurants, movie theaters, stores, schools, offices, recreation facilities, etc.  Since Congress passed the ADA in 1990, lawyers have used the ADA as a tool to compel businesses to remove physical barriers in stores, restaurants, offices, or other places of public accommodation that limited accessibility for people with disabilities.  Numerous lawsuits have been filed to force a business to widen doorways, add ramps, lower countertops, and enlarge dressing rooms in order to accommodate consumers with physical disabilities.

It is only recently that people have begun to file legal actions against companies with websites that are not equipped for use by the visually impaired.  In 2010, the Department of Justice (DOJ), the agency responsible to enforce the ADA, issued an Advanced Notice of Proposed Rulemaking regarding the Internet and people with disabilities.  The DOJ recognized the public’s ever-increasing reliance on and use of the Internet as an online forum to engage with companies and organizations.

Although the DOJ stated it intends to include a person’s access to websites in the DOJ’s interpretation of the ADA, the DOJ has yet to release specific regulations to outline the requirements of a website.  However, many plaintiffs have successfully cajoled businesses into making their websites accessible for the visually impaired.  Rather than face a costly and lengthy trial that is not likely to end in favor of the company, the company will choose to spend the time and money to make their website user-friendly for the visually impaired.  Additionally, since the ADA provides that defendants may be liable for a plaintiff’s legal bill, businesses will negotiate a settlement with plaintiffs to cover legal fees to ensure the case is dropped.

To avoid the headache of facing a lawsuit under the ADA, businesses should try to make their websites accessible to the visually impaired.  Costs to fix an existing website may vary depending on a website’s content.  However, a simple solution may be to install an audio component to the website that permits the business to add narration and keyboard navigation to help accommodate visual disabilities.  At the very least, businesses should include a phone number for website visitors to call to speak with a live person regarding the website.  These solutions may not fully shield your business from a potential threat of litigation under the ADA, but they can certainly work in your favor to show your website has taken steps to accommodate the visually impaired.



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NYC Deems Race Discrimination on the Basis of Hair is Illegal

Effective February 29, 2019, the New York City Commission on Human Rights (NYCCHR) released detailed legal guidance setting forth new protections the New York City Human Rights Law (NYCHRL) has enacted to protect the rights of New Yorkers to maintain hairstyles closely related with their racial, ethnic, or cultural identities.  The NYCCHR’s legal guidance expressly prohibits employers from applying workplace appearance and grooming policies that restrict, ban, or otherwise limit natural hair or hairstyles.

New York City employers must ensure that any requirements imposed on employees to maintain an appropriate workplace appearance may not target specific hairstyles or hair textures and may not enforce those requirements in a discriminatory manner.  Hence, a grooming policy may not ban hairstyles commonly associate with a person’s racial, ethnic, or cultural identities, such as cornrows, locs, twists, Afros, fades, braids, or other hairstyles that are disorderly or inherently messy.  Any policy that attempts to prohibit natural hair constitutes direct evidence of an employer’s disparate treatment based on race, which violates the NYCHRL.

The NYCCHR’s legal guidance also includes additional examples of employer practices that violate the NYCHRL, including the following:

  • Imposing the requirement to obtain a manager’s/supervisor’s approval prior to changing hairstyles on some employees, but not on other employees;
  • Mandating employees wear a hat or visor to hide their hairstyle;
  • Forcing employees to cut or change their hair or otherwise risk being demoted or losing their job;
  • Requiring employees with natural or treated/untreated hairstyles that they may not be in a customer-facing role unless they change their hairstyle; and
  • Refusing to hire an applicant with cornrows, locs, twists, Afros, fades, braids, or other hairstyles that are disorderly or inherently messy because their hairstyle does not fit the employer’s image.

Employers should note that they may adopt grooming policies when the employer has a legitimate safety or health concern, but that the employer must first consider alternative ways to meet that concern before banning or restricting certain hairstyles.  Employers may require employees to wear hairnets, head coverings, or use hair ties to meet a health or safety concern, so long as the employer requires all employees to adhere to this policy.

To avoid the potential threat of litigation, New York City employers should review their handbook policies to ensure they are in compliance with the NYCCHR’s new guidelines.



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U.S. Department of Labor Releases New Proposal for Rule On Overtime

The United States Department of Labor (DOL) announced on March 7, 2019 a new proposed rule that could potentially make more than a million American workers eligible for overtime.

The DOL’s proposed rule seeks to raise the annual minimum salary requirements under the Fair Labor Standards Act (FLSA) overtime exemptions from the current level of $23,660 ($455 per week) to $35,308 ($679 per week).  Although the DOL’s proposed rule aims to impose a nearly 50% increase from the current rule, the proposed minimum salary requirement is still less than the Obama-era proposed rule which would have set the minimum salary at $47,476, or $913 per week.

The DOL’s proposed rule was developed from the extensive public input from over 200,000 comments submitted as part of the DOL’s 2017 Request for Information and 6 in-person listening session held throughout the country.  The overall response indicated that the current salary and compensation levels needed to be increased.

The DOL’s proposed rule includes the following:

  • The minimum salary required for an employee to qualify for exemption will increase from the current level of $455 per week ($23,660 per year) to $679 per week ($35,308 per year).
  • The DOL will commit to a periodic review to update the salary threshold. Any updates to the rule would be subject to the required notice-and-comment rule-making procedures.
  • The total annual compensation requirement for “highly compensated employees (HCE) will increase from the current level of $100,000 per year to $147,414 per year.
  • Employers will be permitted to use incentive payments (which includes commissions) and non-discretionary bonuses that are paid annually (instead of quarterly) or more frequently as a catch-up payment if the non-discretionary pay is not sufficient to satisfy the required salary at the end of the year (no more than 10% of the standard salary level – $3,530.80). However, the standard salary level for HCE salaries ($35,308) must be met without including any incentive payments (which includes commissions) and non-discretionary bonuses, although such incentive payments and non-discretionary bonuses may be included to satisfy the annual salary requirement of $147,414.
  • No changes will be made to overtime protections for police officers, fire fighters, paramedics, nurses, laborers, and non-management employees in maintenance, construction and similar occupations including carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and construction workers.
  • No automatic adjustments will be made to the salary threshold.
  • No changes will be made to the job duties test.

Employers have 60 days to submit comments on this proposed rule to the DOL.  The DOL will then publish a final rule after taking into consideration any comments submitted.  It is anticipated that the proposed rule will take effect in January 2020.



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How to Develop a Compliant Criminal Background Check HR Policy

Any employer that conducts criminal background checks throughout their hiring process should create and implement a criminal background check policy.  This policy will enable your Human Resources department to be consistent when making hiring decisions and will ensure all screening procedures comply with any local, state or federal employment laws.  When hiring and screening is only done sporadically and hiring managers are not provided with guidance, mistakes may be made resulting in violations of local or state laws.  A company-wide policy on criminal background checks that sets forth a clear and understandable screening policy will not only protect employers from potential legal liability, but will also help to create a positive experience for potential new hires and your hiring managers.

When drafting a criminal background check policy that will be applicable across the organization as a whole, the scope of the policy must first be defined.  This will help to lessen the risk of hiring bias, negligent hiring and discrimination.  The scope of the policy should be able to answer the following questions in order to develop the best-fitting practices for your hiring staff:

  • Will the background checks be specific to departments, jobs, or particular roles?
  • What department-specific needs must be included in the policy?
  • What type of screening is required per job or department?
  • Should hiring managers conduct the background check pre-offer or post-offer?
  • Which agency should hiring managers use to conduct background checks?
  • Which, if any, criminal background activity will automatically disqualify candidates from employment with the company or employment for particular jobs?
  • Will the company conduct background checks on current employees?

A criminal background check policy must also set forth the obligations employers have prior to running any type of background check on job applicants or current employees.  For example, employers must obtain written authorization and consent from the applicant or current employee prior to running any criminal background check.  To conduct a background check without first providing notice to the applicant or employee is illegal under New York and federal law.  Under The Fair Credit Reporting Act (FCRA), a federal law, employers must provide a “clear and conspicuous document” to candidates to authorize the employer to conduct a background check that is separate from the job application.  The form must be separate from the job application in order to ensure that the candidate clearly knows he or she is authorizing the company to conduct a background check.  The form will provide an explanation of the types of screenings that will be done and will include space for the candidate to provide personal information such as their address, birth date and social security number.  The form must also inform the candidate that any information retrieved from the screening can influence the employer’s decision to hire, promote or terminate the candidate.  New York also requires that the notification inform the applicant that: (i) the background check may be requested from a reporting agency, and (ii) that the applicant may be notified whether or not the background check was requested, and if it was requested, that the applicant will be informed of the name and address of the reporting agency providing the background check.  This is because applicants are legally entitled to review their background checks since background checks may contain inaccuracies or omissions.

In order to ensure a criminal background check policy complies with the law, the policy should clearly provide the types of information that may be reported in a background check.  In New York, background checks may not contain any arrest records or charges filed against the applicant or employee unless the charges are pending when the background check is conducted.  If the applicant is seeking a position with an annual salary of less than $25,000, the background check may only report criminal convictions that occurred in the previous 7 years.  If the position has an annual salary equal to or greater than $25,000, then all criminal convictions may be reported.  A background check may also not include any non-criminal convictions regardless of how long ago they occurred.

Employers must also include in this policy a section explaining how criminal background reports should be interpreted to impact hiring, promotion, or termination decisions.  This section should also include what federal and state laws require employers to do when making an adverse employment decision based on the background check report.  Below we provide what is required of employers under the FCRA and New York State law.

Under the FCRA, prior to taking any adverse employment action based upon information contained in the background check: (i) the employer must provide a written pre-adverse action notice explaining its intent to take adverse employment action to the applicant or employee, (ii) the employer must provide the applicant or employee with a copy of the document titled “A Summary of Your Rights Under the Fair Credit Reporting Act,” and (iii) the employer must also provide the applicant or employee with contact information of the agency or company that conducted the background check.  Then the applicant or employee must be afforded a “reasonable time” to correct or dispute any information that is incorrect in the report or further explain any information contained in the report.  After the employer takes an adverse employment action, the employer must provide the applicant or employee with a copy of the background check report and a second notice: (i) containing the contact information of the agency or company that conducted the background check, (ii) stating the agency or company that conducted the background check did not make the employment decision, (iii) stating the applicant or employee has a right to dispute the accuracy of the information contained in the report, and (iv) a notice of the applicant or employee’s right to receive an additional free report from the provider within 60 days upon request.

An employer merely complying with the FCRA can still violate New York law.  In New York, employers cannot simply deny an applicant employment due to previous criminal convictions.  The New York State Human Rights Law (NYHRL) prohibits employers from discriminating on the basis of an applicant or employee’s prior conviction unless (a) there is a direct relationship between the offense and employment sought; or (b) if employment of the applicant or employee would impose an unreasonable risk to property or the safety or welfare of others.  Article 23-A of the New York Correction Law requires employers to consider the following 8 factors when determining if employment should be denied based on past criminal convictions:

  1. The responsibilities and duties related to the position sought or held.
  2. The effect, if any, the criminal conviction has on the applicant’s or employee’s ability to fulfill the primary responsibilities and duties of the job.
  3. The seriousness of the offense.
  4. How old the applicant or employee was when he or she was convicted.
  5. The amount of time that has passed since the applicant or employee committed the criminal offense.
  6. Any information the applicant has produced, or was produced on the applicant’s behalf, regarding his or her good conduct and rehabilitation.
  7. The interest in protecting property, and the welfare and safety of specific individuals or the general public.
  8. The state’s public policy to encourage employing individuals previously convicted of criminal offenses.

If a hiring manager decides not to offer the applicant the position or to terminate the employee’s employment after all 8 factors above were taken into consideration, in addition to the FRCA notification requirements, employers must provide the applicant or employee with a copy of Article 23-A of the New York Corrections Law when the report contains information regarding a criminal conviction.  The applicant or employee is entitled to request a written statement setting forth the reasons for this denial and employers must provide this statement within 30 days of the applicant’s or employee’s request.

Employers should also be sure to include and explain the requirements of local laws regarding criminal background checks, such as the New York City Fair Chance Act, if applicable.

By implementing a criminal background check policy, employers can stay compliant with federal, state and local laws, and can ensure a consistent hiring, promotion, and termination process is applied across the entire company.



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