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.
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.
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.
No. The prospective employer must provide you with a copy of the background check it obtains from the consumer reporting agency 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.
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 FCRA, an action must be filed within two years after you discovered the violation, or within five years after the violation occurs, whichever is earlier.
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.
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.