Dear NAPBS Members,

As you may be aware, the State of New York has amended its laws relating to investigative consumer reports and those reports containing criminal reports. New York’s ex-convict’s have a high unemployment rate of approximately 60% after one year from release. To help those people find employment, New York is working to make it very clear to the users of criminal reports that they cannot discriminate against these people simply because they have a criminal record.

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 for 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 employing someone in New York.

What does a consumer reporting agency need to do?

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.

2. Provide new language in your Consent and Release forms referencing that a copy of Article 23-A is being provided to the consumer. A suggested form is provided. 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. Of course, many regular consumer reports contain criminal records, but the Consent and Release for these types of reports need not contain this notice regarding discrimination and the use of criminal reports. Rather the user of a regular consumer report will provide a copy of the law later in the process. This creates a very confusing situation. When the law creates choices, it is likely that some ministerial person will select the wrong choice and thus create the legal trap. 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. If you wish to alter your own forms rather than using the attached form, then be sure that the form covers regular and investigative consumer reports and that an acknowledgement for the receipt of Article 23-A is included on the form.

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. Logically the inverse should be true that such analysis would provide a defense to a discrimination claim by an applicant who is not hired. Your clients may not have heard of this law or they may not have implemented it in their hiring process. In order not to lose clients due to new legal requirements, it is suggested that CRAs provide the enclosed suggested form with the attached cover letter to their customers which can be used either to qualify or disqualify an applicant/employee based upon his/her criminal record. Filling out part of the form, not the decision making process, might be of service the CRA can offer to the client and thus the customer only has 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 attached. We cannot guarantee the completeness of this chart, but it is the official chart provided by the State of New York for categorizing state crimes.

Documents can be found at

http://www.napbs.com/content.php?id=270

Scroll to the bottom of the page for the New York Documents.

The Crimcheck.com office will be closed on Friday, November 28th. Email support and questions will still be answered during normal business hours on Friday.

New York State recently enacted legislation regarding a company’s requirement to consider the relevance of an applicant’s criminal history to the job that is being applied for. The legislation goes into effect on February 1, 2009.

The legislation requires that companies must provide individuals subject to a criminal background check with a copy of Article 23-A of the Corrections Law: “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses,” before it requests a criminal history report from a CRA (Consumer Reporting Agency) and when it receives a background screening report reflecting a criminal history.

The recently passed legislation also requires employers to post a copy of Article 23-A of the Corrections Law in the workplace.

Crimcheck to be closed Labor Day ( September 1st )

Effective July 1, 2008, significant changes are scheduled to take place in Vermont regarding criminal record access at the courts, from the Vermont Criminal Information Center (VCIC), and what will be reported on the VCIC record. These changes are triggered primarily from passage of Senate Bill 246. Currently, the court fee for a criminal record search at a Vermont county district court is $10. Effective July 1, the fee will increase to $30 (per county search). Copy fees and certification fees will remain the same. Currently, the fee for a criminal record search at the VCIC is also $10. Records are essentially released only to two public groups; the subject and to an employer, but only if a conditional offer of employment is made. Effective July 1, the fee for the state VCIC search will be $20 and the restrictions will be removed; records will be open to the public. The fee will increase again in July 2009 to $25. Currently all VCIC record requests must be made manually, but there are plans by the VCIC to have Internet access in place by December 2008. However, there is an important caveat regarding what data will be reported by VCIC as of July 1. Per the new law, the data reported on the VCIC record will be restricted to only include the name, DOB, date of conviction, type of conviction and offense level. The location of the court, the case docket number and arrest-only records will not be shown. Thus, if there is a question on the name, a name variation, or common names with possible identical DOBs, one must pay the $30 search fee at each county district court searched to find the docket number in order to access the document file. Reportedly, five of Vermont’s 14 counties provide public access terminals – Chittenden, Franklin, Bennington, Rutland and Windham – which may provide a docket look-up. The Vermont Administrative Office of the Courts and the people at VCIC are sympathetic to the problem. The VCIC has stated they will do everything possible to help narrow down the false positives. They predict a five-day turnaround time to complete a search.

Crimcheck.com will be closed in celebration of Independence Day on July 4, 2008.  Offices will resume normal business operation on Monday July 7, 2008

The Office of Court Administration in the state of New York has increased their fee from $52.00 to $55.00. This is the first increase that New York has had since the creation of the OCA in 2003. This fee will be passed along to those who request records provided by the OCA

Crimcheck.com offices will be closed on May 26, 2008 in observation of Memorial Day. Courts will also be closed for this holiday. Crimcheck.com will reopen on May 27, 2008 at 8:30 am EDT.

Ted Moss, President of Crimcheck.com was asked to present at the National Background Screening Conference in Clearwater Beach, FL in November.  Moss will be speaking on Negligent Hiring.