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Understanding the Use of Criminal Records Under NYS Article 23-A

A criminal history can follow a person throughout their life.

Their past can make it difficult for them to find a job, receive an occupational license or even volunteer.

New York State Article 23-A

NYS Article 23-A is an attempt to level the playing field for qualified job seekers and current employees with one or more convictions. This state law requires employers to evaluate individuals on a case-by-case basis rather than unfairly discriminating against every person with a criminal record.

If your organization is running criminal record searches, pre-employment background screening or credit report checks in Buffalo, NY, here’s what you need to know about NYS Article 23-A.

Notification and Disclosure

New York State requires all employers to post a copy of New York Correction Law Article 23-A in a public place. In addition, companies must give a copy of Article 23-A to anyone undergoing a background check.

Fair Advertising

Businesses should not use words and phrases such as “honest,” “trustworthy” or “history of making good decisions” in job descriptions. This language seeks to exclude candidates with a criminal background.

The Application Process

Although eleven states and New York City have Ban the Box laws, New York state allows employment application to include questions about a candidate’s criminal convictions only. Inquiries about arrests, sealed convictions or youthful offenses are illegal. Also, businesses must provide a disclaimer stating a conviction does not automatically eliminate an applicant from consideration.

Interview Questions

Most violations of NYS Article 23-A occur during interviewing and screening. A best practice is to prepare and write-out questions in advance. This ensures inquiries are legal and appropriated worded.

Hiring Decisions

A company may deny or terminate employment due to criminal convictions under two narrowly defined circumstances. 1) A direct relationship exists between the criminal offense and the specific job. For example, an investment group could decide not to hire a financial planner recently convicted of embezzlement. 2) Hiring the individual would present an unreasonable risk to the employer’s property, to specific individuals or to the public.

Article 23-A offers several guidelines for setting criteria when hiring applicants with a criminal history. These considerations include the amount of time passed since the occurrence of the offense, the age of the person at the time crime was committed, the seriousness of the conviction and any information available concerning the individual’s rehabilitation and good conduct. For instance, let’s say a candidate with a Driving While Intoxicated (DWI) conviction applies for an accounts payable position. If the conviction took place five years ago when the applicant was in their early 20s, youth and poor judgment probably played a role. Assuming the individual has no other convictions and has completed the recommended counseling programs, their past crimes should not influence the hiring decision.

Is Your Organization Compliant with NYS Article 23-A?

Of course, you want to hire talented, diverse and responsible workers without unfairly discriminating against those who made mistakes in the past. At Metrodata Services, our experts can help you run and evaluate pre-employment screening and credit report checks. Contact Us today to learn more!