Frequently Asked Questions
In general, an employer can require a background check as a condition of employment. However, the employer must first get your signed written authorization, and otherwise follow the procedures set out in the Fair Credit Reporting Act (FCRA). Moreover, what your employer can ask you may be limited by state law. Do you have more questions? Contact us here.
In general, employers should not be denying employment because of a criminal conviction without performing an individualized inquiry. Under the Equal Employment Opportunity Commission (EEOC) guidelines, employers should look at factors like the nature and gravity of the offense, the time since the offense, and the nature of the job, and should only exclude an applicant because of his or her criminal record if there is a “business justification.” This is because the exclusions may operate to disproportionately and unjustifiably exclude people of a particular race or national origin (or other protected category) in which case it would violate Title VII of the Civil Right Act of 1964. Under New York State and City law, it is illegal to deny employment because of a criminal conviction without considering the eight factors laid out in the New York Correction Law. Many other states also have restrictions on the use of criminal convictions in hiring. Do you have more questions? Contact us here.
As a general matter, employers should not be using arrests that did not lead to a conviction as a basis to deny employment. Under the Equal Employment Opportunity Commission (EEOC), guidelines, employers should not exclude people based upon arrests that did not lead to conviction unless there is a “business justification.” Under New York State and City law, it is illegal to deny employment because of an arrest if it is not currently pending, and was terminated in your favor, unless the denial is specifically required or permitted by other laws. Many other states including California, Hawaii, Illinois, Massachusetts, Michigan, Ohio, Pennsylvania, Rhode Island, Utah, and Wisconsin also have restrictions on the use of arrest records in hiring. Do you have more questions? Contact us here.
Can a prospective employer make a decision not to hire me before providing me with a copy of my background check?
No. If you authorized a background check, the prospective employer must provide you with a copy of that background check before making a decision about whether to hire you. The prospective employer must also provide you with a reasonable amount of time to contest the information on the background check report before making a decision about whether to hire you. Do you have more questions? Contact us here.
Under Title VII, you must first file a charge with the Equal Employment Opportunities Commission (EEOC) before filing a lawsuit. In New York, you have 300 days from the adverse action to file a charge, but in other states your time to file may be only 180 days. Under the New York State Human Rights Law and New York City Human Rights Law, you have three years from the adverse action to file an action. Do you have more questions? Contact us here.
Both. For example, we represent individuals in everything from negotiations to litigations, and classes of people like the applicants to the Census Bureau who were denied jobs because of their criminal records, and for whom we recently achieved class certification. Do you have more questions? Contact us here.