Employee Background Check Laws in New York

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., is the primary federal law governing background checks. It requires employers (and background check agencies) to obtain written consent before conducting reports, provide notice before taking adverse action based on the report, and give applicants a copy of the report and the agency's contact information so they can dispute inaccuracies. The FCRA applies to all employers that use consumer reports for hiring decisions. The Consumer Financial Protection Bureau (CFPB) enforces the FCRA, along with the Federal Trade Commission (FTC).

Under the FCRA, applicants have the right to dispute any information in the report and request reinvestigation. Employers cannot use outdated criminal convictions or other information beyond the statute of limitations. The law gives applicants at least five business days to respond to adverse action notice before the employer can take action. Remedies include damages for willful or negligent violations, and the EEOC enforces FCRA violations related to discriminatory use of background checks.

New York imposes stricter requirements than federal law in several critical areas. New York General Business Law section 380-l requires employers to provide applicants with written notice that a background check will be conducted and obtain written authorization. Crucially, applicants must receive a copy of the report before any adverse action is taken, and they have 10 calendar days from receiving the report to dispute inaccurate information—longer than the federal FCRA timeline.

New York's ban-the-box law, Correction Law section 752, prohibits most employers with four or more employees from inquiring into an applicant's criminal history or running a criminal background check until after a conditional job offer has been made. This applies to employers in New York and applies to out-of-state employers with New York employees. The restriction covers both direct inquiries and third-party background checks; an employer cannot ask "Have you ever been convicted of a felony?" early in the process or require applicants to disclose arrests or convictions on initial applications. After a conditional offer, employers may inquire and consider criminal history, but only if the conviction is directly related to the job or hiring the person poses an unreasonable risk. This is significantly stronger protection than federal law.

New York Executive Law section 296 incorporates background check practices into human rights law, making it illegal to use background checks in a discriminatory manner based on protected characteristics. State law applies to employers with one or more employees, broader than many federal thresholds. Remedies under New York state law include actual damages, compensatory damages for emotional distress, punitive damages up to $1,000 per violation, and attorney's fees. The New York Division of Human Rights enforces these protections and has authority to investigate complaints and issue fines.

New York law does not restrict background checks for certain positions. Law enforcement agencies, criminal justice agencies, and employers in security-sensitive positions may have carve-outs from the ban-the-box requirements, though the law is narrowly drafted. Employers can still conduct background checks at any stage of hiring if the applicant voluntarily discloses criminal history or if required by federal, state, or local law.

Background check limitations apply only to criminal history inquiries and checks under the ban-the-box law; employers may still inquire about and check employment history, education, credit (with consent and applicable restrictions), and civil records without ban-the-box timing restrictions, though General Business Law section 380-l and FCRA still apply to all background checks.

Positions explicitly exempted from ban-the-box timing requirements include certain law enforcement roles, positions with direct access to children or vulnerable populations in specific licensed facilities, and some positions handling regulated financial instruments or sensitive security clearances. However, employers must still comply with the dispute and notification requirements of General Business Law section 380-l.

The law does not prevent employers from ultimately rejecting applicants with criminal records if the conviction is directly related to the job or poses a documented unreasonable risk. Employers also do not violate the law if a third-party background check vendor conducts prohibited inquiries without employer instruction, though the employer remains responsible for compliance. Expired criminal records or records sealed under New York law may not be used in hiring decisions.

Step 1: Document Everything.

Keep detailed records of all communications related to your background check, including: the initial job posting or application materials to show when you were asked about criminal history (if at the application stage), copies of any consent forms or emails showing authorization requests, the date you received the background check report, and any correspondence about accuracy disputes. If you discovered inaccurate information in the report, document exactly what was incorrect (arrest date wrong, conviction attributed to you incorrectly, etc.). Save emails, letters, and screenshots. Take notes on conversations with HR or the employer, including dates and what was said. This documentation is critical for proving the employer violated General Business Law section 380-l or the ban-the-box law.

Step 2: Attempt Internal Resolution.

If you have not yet received a copy of your background check report, request it in writing via email to the employer's HR department or hiring manager. Under General Business Law section 380-l, you have the right to the report. If you have the report and found inaccuracies, contact the background check agency (the report will include the agency's name and contact information) and request an investigation and correction in writing. Provide specific evidence of the inaccuracy. Send a copy of this dispute to the employer as well. The FCRA requires the agency to reinvestigate within 30 days; New York law also holds employers accountable for the accuracy of reports they use. If you received an adverse action notice (notice that the employer is rejecting you or withdrawing an offer due to the background check), you have 10 days under New York law to dispute the information in writing with the employer. Exercise this right immediately by sending a detailed written response explaining the inaccuracy and providing supporting documentation (court records, certificates of disposition, etc.). Keep copies of everything you send.

Step 3: File a Complaint with New York Division of Human Rights.

If the employer fails to resolve the issue or violated the ban-the-box law (asked about criminal history before conditional offer, or before you were given opportunity to dispute), file a charge with the New York Division of Human Rights. The deadline is one year from the violation, though filing early is advisable. Visit www.dhr.ny.gov or call 1-888-392-3644. You can file online, by mail, or in person at any regional office. You will need to provide: your name and contact information, the employer's name and address, the date of the violation, a detailed description of what happened (e.g., "Employer asked about criminal history on initial application dated [date], violating ban-the-box law"), any evidence (emails, forms, job posting, report), and whether you have filed a federal EEOC charge (if applicable). The Division of Human Rights will assign an investigator who will contact the employer and request their response. Simultaneously, consider filing a federal EEOC charge if the background check was used discriminatorily (e.g., the employer asked about criminal history from applicants of color but not white applicants). EEOC charges must be filed within 180 days in most cases, or 300 days in New York (a deferral state). File with the EEOC at: www.eeoc.gov, or call 1-800-669-4000, or visit the New York EEOC office at 33 Whitehall Street, New York, NY 10004. The EEOC investigates discrimination-based charges; the state Division of Human Rights investigates General Business Law violations and ban-the-box violations.

Step 4: Investigation Process.

Expect the investigation to take 60-120 days. The New York Division of Human Rights investigator will request: copies of all background check materials, the report itself, correspondence about disputes, employment records, the job posting, the hiring decision, and communications with the applicant. The employer will provide their perspective and any documentation they have. If the employer used a third-party background check agency, both the agency and employer may be investigated. You may be interviewed by phone or in person. The investigator will determine whether there is probable cause that a violation occurred. If probable cause is found, the Division will offer conciliation to resolve the case. If conciliation fails, the case may proceed to a public hearing before an administrative law judge. This process is free and you do not need to hire an attorney at the investigation stage, though you may.

Step 5: Consult an Attorney.

Consider consulting an employment law attorney if: (1) the employer refuses to provide a copy of your background check report, (2) the inaccuracy is not corrected by the agency within 30 days, (3) the employer took adverse action without allowing you 10 days to dispute, (4) the employer asked about criminal history before making a conditional offer (potential ban-the-box violation), or (5) the employer's rejection appears to be based on discriminatory application of the background check (other applicants with similar records were hired). An attorney can file a complaint with the Division of Human Rights on your behalf, file a parallel federal EEOC charge, and potentially file a private civil lawsuit under General Business Law section 380-l or state human rights law. Private lawsuits can recover actual damages (lost wages, emotional distress), compensatory damages, punitive damages up to $1,000 per violation, and attorney's fees. Many employment attorneys work on contingency and offer free initial consultations. Contact the New York State Bar Association (www.nysbar.org) for referrals.