The New York State Office of Court Administration (OCA) provides a statewide criminal history record search (CHRS) for a nominal fee of $95.00. This means anyone can request a background check on an individual or an organization, without having to use the services of a background screening company. It’s worth noting, however, that if you’re a potential employer who is new to conducting these checks, you should take great care that they adhere to the laws governing the use of the information. Otherwise, you could find yourself and your business in hot water as a result.
How to Use the CHRS Service
Using this service requires you to complete an application form, which can be downloaded from the OCA’s website at NYCourts.gov. On completion, you can submit the form online at any time of the day or night, with your payment by e-check or credit/debit card. It’s also acceptable to mail the form with a regular check or money order for the fee, made out to the NYS Office of Court Administration.
Your application needs to include the exact name and date of birth of the party you’re checking. Searches are conducted electronically and include public records of open and pending cases as well as convictions at all levels of the 62 counties, and because they are based on digital identifiers anything that isn’t an exact match won’t be found.
Sealed records are not revealed to a private client or a background screening company, and you can’t search individual county records. Non-criminal violations and infractions aren’t included and neither are cases processes in the town and village courts between 1991 and 2002, so if you’re looking for any of those you’ll need to employ the expert resources of a background screening company.
NY State Laws on Background Checks
New York State allows employers to check the background of potential hires for employment purposes. That doesn’t mean the freedom to use the information as you like, though, and the reports generated are strictly regulated by the state and federal Fair Credit Reporting Acts. According to the National Helping Individuals with Criminal Records Re-enter through Employment (H.I.R.E.) Network, employers are justified in holding concerns about hiring a candidate with a criminal background, especially if the applicant’s history makes them a liability.
Take note that these checks won’t include information about arrests or charges unless these are still pending when the check takes place. For more detailed information, you’ll have to contract a background screening company to perform a comprehensive check under the appropriate circumstances.
How You Can Legally Use the Information
In terms of the law, you’re allowed to use information gathered during a background check in your evaluation of the prospective employee, as long as you:
- Tell the applicant you intend to get such a check,
- Ask the candidate for additional information to clarify the findings from the background check, and
- Don’t refuse to hire the applicant because they have a criminal record, unless specific exceptions apply.
Tips for making the best use of the information you obtain include:
- Reviewing the criminal history of an applicant to see if you can spot gaps in the information, or anything that appears misleading. These are common occurrences on a report, which can stop you from getting a clear, full picture of your applicant.
- Verifying the information with the candidate, since the millions of records filed with the criminal justice service may well contain errors. In an analysis of NYS records, the Legal Action Center discovered errors in at least 30% of records from 2008 to 2011, so it happens frequently.
- Think about the date when the offense occurred. It’s often much, much earlier than the conviction date, because of the delays in getting cases through the courts. You might not want to penalize a good candidate for something they did as a teen.
- Check to see whether the conviction was for the same charges as the original indictment. You are only legally allowed to take into account the final conviction, and if this is for a substantially lesser charge than the offense it is typically worth looking into.
- Consider the number of charges in an indictment. Often, a single offense is charged under multiple different categories, which doesn’t necessarily mean the candidate committed multiple offenses.
If the vacancy you are recruiting for has annual compensation lower than $25,000, you’re only entitled to review convictions that took place in the preceding seven years. If the annual compensation is higher than that amount, you’re entitled to review all criminal convictions that exist.
There are only two instances when you can use a candidate’s criminal record to refuse to employ them. One is when a direct relationship exists between the job description and the type of offense, such as financial fraud or identity theft, and a financial position. The other is if you anticipate hiring the person could cause danger to people or property as a result.
For more information on how to use New York’s CHRS system or to hire an experienced background screening company, contact us to schedule a quick chat.