Background Check Ruling May Get NY Employers to Do Double-Take

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The federal agency that enforces employment discrimination laws voted Wednesday to make the first new guidance in more than 20 years on the use of criminal background checks in hiring decisions.

The new guidance, approved in a bipartisan 4-1 vote by the Equal Employment Opportunity Commission, takes precedence over state and local laws and makes explicit what practices violate federal civil rights law.

But unlike other states, New York already has a law that explicitly bans discrimination against people with criminal convictions and requires employers to consider eight separate factors before denying employment on the basis of a criminal conviction.

Even so, local advocates say the new federal guidance may cause employers to give their practices a second look, as well as call into question certain state hiring practices.

"In New York State, if you want to work in a nursing home you can't work there for 10 years if you have a felony unless you have a certificate of relief or a certificate of good conduct,” said Glenn Martin, vice president of development and public affairs at the Fortune Society, an organization that works with the formerly incarcerated. “Based on what passed [Wednesday], I would argue that may indeed be illegal."

This kind of conflict appeared to worry the Society for Human Resource Management, which said in a statement that they remain "concerned with the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions."

Exactly how and when criminal histories can be used by employers has been fiercely contested by employers and advocates, even as new technology has radically increased access to information about job applicants.

"The employer community frequently isn't getting it right," said Madeline Neighly, a staff attorney for the National Employment Law Project. "There's a lack of knowledge and a lack of information on what they need to do."  

The guidance gives concrete examples of best practices as well as practices that may violate the law; for example, online applications that boot job-seekers from the system if they admit to having any criminal record.