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State legislators are reviewing a proposed bill that would prohibit employers from inquiring about an applicant’s criminal history until after they extend a conditional offer.

About The Bill

The New York State Assembly is considering Assembly Bill 03726 (A03726), which is intended to help people with lower-level criminal records find jobs. This bill would prohibit employers and employment agencies from making inquiries about an applicant’s arrest or conviction records during the initial stages of the hiring process.

A03726 specifies that an inquiry is: “any question communicated to an applicant in writing or otherwise, or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant's criminal background information.” This means that if the bill passes, organizations will need to determine a candidate is otherwise eligible for hire and make a conditional offer before checking the person's criminal history.

The bill further clarifies types of data employers would not be allowed to review or ask about during the initial phase of the hiring process. They include:

• Arrest records.
• Convictions records.
• Information from criminal background checks.

An Exception

A03726 provides certain exceptions. It notes that employers may ask about a person’s criminal history prior to making a conditional offer if they are required to do so by any state, federal or local law.

After Extending A Conditional Offer

New York’s proposed legislation includes a section that informs employers of their right to inquire about an applicant’s criminal history after a conditional offer is made. This can involve asking the person directly or running a comprehensive background check.

If the organization uncovers criminal records that cause them to consider revoking the offer, they would first be required to provide a written explanation to the person along with a copy of the background report, if one was run, that resulted in their decision. The candidate must be given three days to respond to this letter.

What Employers Should Know

Employers in New York should be aware of A03726 and understand that if it passes, they must comply and only inquire about an applicant’s criminal history at the appropriate time. If the bill is signed into law, it will go into effect right away.

Every employer should know that the Second Chance Movement exists to help people with non-violent criminal records find employment, housing and other necessities. Bills like A03726 have been passed throughout the country to offer people new opportunities, reduce the rate of recidivism and give hiring managers a larger pool of applicants. We recommend consulting with legal counsel to make sure your organization is compliant with all applicable laws.

Background Checks Remain Essential

Some second chance laws specify when background checks may be run, but they also generally encourage hiring managers to check each applicant’s criminal history. This is done to help businesses maintain safe workplaces and conduct due diligence. Not running background reports could put your business at risk of negligent hiring claims if someone is brought on who has a violent criminal history or convictions that are related to the position.

If your organization is looking for employees, volunteers or contractors, please contact us. Our experienced team can help you customize screening packages based on your needs, industry regulations and applicable laws. We are available to assist you Monday through Friday from 5am to 6pm PT.