"Take A Closer Look At Who You Employ"

New York State Law Changes

Date: January 30, 2009

On February 1, 2009, two changes to the New York consumer reporting laws will become effective:

§380-c, General Business Law. If a user requests an investigative consumer report for employment purposes, The user must, in the notice to the consumer state that a report will be sought and indicate that it is providing a copy of Article 23-A of the New York Correction Law to the consumer which sets forth the anti-discrimination provision relating to those with criminal records. It matters not whether the investigative consumer report will contain any criminal record information.

§380-g, General Business Law. This amendment added sub-section (d) which provides that if a consumer report contains a criminal record then the user shall provide a copy of Article 23-A of the Correction Law to the consumer. 

While the law does not specifically state which hiring situations are controlled by these new laws, past research suggests that New York discrimination laws will apply to those working in the State of New York. Thus it will apply to a New York company employing an applicant to work in New York. It will not apply to a New York company employing a person in New Jersey unless they hire that person in New York. It will apply to a New Jersey company employing someone in New York.

In an effort to keep your business compliant with these new laws, Premier InfoSource will:

1. Provide a workable copy of Article 23-A of the New York Correction law which provides the rights of non-discrimination for those with criminal records to your customers. A suggested format is included. It is down to a front and back of one page. (see NY Article 23-A Pack)

2. Provide new language in your Consent and Release forms referencing that a copy of Article 23-A is being provided to the consumer. (see New York Employment Inquiry Release Form)  In regard to the use of Consent and Release forms, the new law provisions do not follow a logical connection to the report being provided since they require notification if any investigative consumer report, regardless of whether the report includes criminal records, is ordered but the notice about criminal convictions must be in a Consent and Release form. It is recommended that a single Consent and Release form be used for New York employment and every consumer who is the subject of the report be provided a copy of the anti-discrimination law found in Article 23-A.

New York has also provided a safe harbor for employers. Since the state is pushing for employment of those with a criminal record, it has now provided a defense to a negligent hiring/retention claim if the employer considers the elements contained in §753 of Article 23-A. In order to incorporate this law into your hiring process, you can now qualify or disqualify an applicant/employee based upon his/her criminal record. The Criminal Record Review Form can be used to describe the relationship of the offense to the job and the reasons for not hiring or hiring the individual. Further, a chart of New York offenses and their classifications so that relative seriousness can be noted on the form, is also available.  Premier InfoSource cannot guarantee the completeness of this chart, but it is the official chart provided by the State of New York for categorizing state crimes.

Additional forms and copies of the above mentioned documents can be found at www.premierinfosource.com/articles/forms/index.shtml