Background Checks

In late September, Paul Keefe, Supervising Attorney at the NYC Commission on Human Rights, gave a detailed presentation on New York City’s new background check laws and clarified the Commission’s interpretation of the laws and their exceptions. He also indicated that the Commission would be disseminating regulations, after a public notice and comment period, to clarify some of the exemptions under the Stop Credit Discrimination in Employment Act, which are broader than the current Guidance and FAQs suggest. We will report on these regulations later, after they become available. Keefe also emphasized that the Commission welcomes input from those impacted by this legislation, especially with respect to regulatory requirements with which the Commission is not familiar.

Additional criteria Keefe made during the session that hiring firms in New York City should adopt to be in compliance include:

  • New York City employers must refrain from mentioning the possibility of an applicant background check, whether on a job posting or application, or through verbal communication, until after a conditional offer has been made.
  • Prior to a conditional offer, employers may mention, verbally or in writing, the need for verification of employment references, education and licensure.
  • New York City employers and multi-state employers with operations in New York City should review and update, as necessary, all hiring materials and portals to ensure compliance.
  • Barring the release of further guidance, affected employers should also amend FCRA disclosures and authorizations to remove any reference to credit checks unless the applicant is subject to one.
  • If the position for which an applicant applies qualifies for an exemption, the employer must notify the applicant of it, in writing, before performing a credit check.
  • Employers must keep an “exemption log” of all noting the applicants and positions that fall under an exemption.

As with most regulations pertaining to background checks, this law applies whether the check is performed by the organization or a third-party vendor. For more information on the shifting landscape of background and credit check laws and their implications for hiring companies, or to discuss your company’s current programs and/or policies, we invite you to give us a call at (765) 932-5917.