Posting and Notice Requirements for New York’s Article 23-A

Article 23-A of New York’s Correction Law (§§750-755), relates to licensure and employment of persons previously convicted of one or more criminal offenses . It prohibits employers from denying or terminating employment on the basis of an applicant’s or employee’s prior criminal convictions, except for two narrowly defined exceptions.

The two exceptions to hiring or continued employment of an individual with criminal history are:

1. Where there is a direct relationship between one or more of the previous criminal offenses and the employment sought or held by the individual, or
2. The granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Employers must consider the following factors when making decisions about employment or continued employment of individuals with criminal history:

1. The public policy of the state, as expressed in the law, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses ;
2. The specific duties and responsibilities necessarily related to the employment sought or held by the person;
3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
4. The time which has elapsed since the occurrence of the criminal offense or offenses ;
5. The age of the person at the time of occurrence of the criminal offense or offenses ;
6. The seriousness of the offense or offenses ;
7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct, and
8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

Employers must inform applicants and employees of Article 23-A in three different ways:
First employees must post a copy of the law in the workplace that is accessible to employees and in a visually conspicuous manner. (NY Labor Law Article 7 § 201) It is usually posted along with other required state and federal posters.

Second, employers are required to provide a copy of Article 23-A to any applicant subject to a background check. (NY General Business Law § 380) This is usually done at the beginning of the application process by attaching a copy of the Article to the job application form, or as part of the background check authorization and disclosure process. As a best practice, the applicant should be required to acknowledge in writing that he or she received a copy of Article 23-A.

Third, a copy of Article 23-A must be given to an applicant whenever a consumer report containing criminal conviction information is given to the employer. (NY General Business Law § 380) A complete copy of Article 23-A should be sent to the consumer along with a copy of the consumer report.

Article 23-A is enforced by the New York Division of Human Rights Division and the City Commission on Human Rights.

New York Correction Law Article 23-A: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@SLCOR0A23-A+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=50784808+&TARGET=VIEW

NY Labor Law Article 7 § 201-f:  http ://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$LAB201-F$$@TXLAB0201-F+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=06031469+&TARGET=VIEW

New York General Business Law § 380-d:  http ://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$GBS380-D$$@TXGBS0380-D+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=01628628+&TARGET=VIEW

New York General Business Law § 380-g:  http ://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$GBS380-G$$@TXGBS0380-G+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=01628628+&TARGET=VIEW