|
Getting your Trinity Audio player ready...
|
Thinking about running background checks on job candidates? Before you dive in, learn about the legal nuances and surprising local restrictions that could shape your hiring process.
“I’m an employer hiring for my business, and I want to run background checks before extending an offer of employment. Is that okay?”
Competent and trustworthy employees are the cornerstone of any successful business, particularly in healthcare, where the quality of staff directly affects reputation and outcomes. Whether hiring for a large hospital system or a newly opened private practice, many healthcare businesses require criminal and credit background checks to build trust and provide peace of mind to patients and clients.
For instance, credit checks might reveal red flags when hiring a bookkeeper, while employers find criminal background checks relevant to a wide range of professions. Many licensing boards already conduct background checks on licensees. Nonetheless, some employers still run their own background checks as an additional layer of protection.
Legal Requirements for Background Checks
If you’re an employer who conducts background checks, it is critical to comply with the federal Fair Credit Reporting Act (FCRA). The FCRA requires employers to notify candidates that they may use information obtained through a background check to make employment-related decisions. In addition, employers must obtain the candidate’s written consent before initiating a background check. Importantly, guidance from the Federal Trade Commission, which enforces the FCRA, advises that the notice and consent forms be provided as a standalone document, separate from other hiring materials.
Employers must also consider state and local laws that govern background checks. This is particularly important for healthcare businesses hiring providers across multiple states, as these laws vary significantly.
To help navigate the regulatory labyrinth surrounding criminal background checks, consider the following questions:
- In which state am I hiring?
- When can I request a background check?
- What decisions can I make based on a candidate’s criminal background information?
Being aware of these factors is essential to avoid potential legal pitfalls.
See our related article, “Hiring for Your Healthcare Practice? Mind These Legal Issues.”
Hypothetical Scenarios: Background Checks in Texas and New York
Suppose you have interviewed qualified candidates for your facilities in Texas and New York and are ready to move forward with hiring both. Because your facilities operate in these states, the criminal background check laws of Texas and New York will govern the process.
Can I request the criminal background check after selecting candidates but before contacting them?
In Texas, the answer is yes—as long as the candidate provides their consent as required by the FCRA during the application or interview process. The FCRA mandates that employers provide notice to the candidate within three days of requesting the criminal background check. In complying with federal law, Texas employers satisfy all consent and notice requirements.
In contrast, employers in New York State face notice requirements beyond those of the FCRA. New York employers must notify candidates that they will undergo a criminal background check before initiating it. Additionally, if a candidate submits a written request, New York law requires employers to provide information about whether a background check has been requested and, if so, the name and address of the agency conducting the check. Candidates must also be informed of the right to obtain or inspect a copy of the background check. These rights are often outlined in a notice provided to the candidate prior to the background check request.
Can I make a hiring decision based on the information in a candidate’s criminal background check?
State Law in Texas
For employers in Texas, the answer is usually yes. Texas law allows employers to use the information from a candidate’s criminal background check to screen candidates. Employers may decide not to hire an otherwise qualified candidate if they determine that having a prior criminal history affects the candidate’s ability to perform the required work. However, state law doesn’t always provide the final answer to questions about employment practices.
Local Law Versus State Law
One notable example in Texas is Austin’s “fair chance” hiring ordinance, which prohibits employers with fifteen or more employees from asking prospective candidates about their criminal history during the early stages of the hiring practice. In addition, the ordinance prohibits employers from automatically disqualifying candidates based on their criminal history. If an employer revokes a job offer or decides not to hire based on criminal history, they must provide a written good-faith explanation demonstrating that the candidate is unfit for the position based on an individualized assessment.
You may wonder, “How can a city within a state implement a law that is more restrictive than state law?” State laws are generally written broadly to establish a baseline for legal requirements—a “floor” that must be met. However, local governments, such as cities or counties, can create additional laws or ordinances to address specific issues not fully covered by state law. These local regulations effectively build upon the state law, providing further guidance or restrictions. Austin’s “fair chance” hiring ordinance is a prime example of this dynamic.
New York State Law
Under New York law, employers cannot deny employment solely because of a prior criminal conviction unless one of two conditions is met.
- The candidate’s previous criminal offense bears directly on their ability or fitness to perform the job’s duties or responsibilities.
- The candidate presents an unreasonable risk to property, the safety and welfare of specific individuals (such as patients), or the general public.
In other words, employers must thoroughly assess the risks of hiring candidates with prior criminal convictions before denying employment.
When denying employment based on a criminal conviction, employers must consider numerous factors to ensure their decision is lawful. These include, but are not limited to:
- The relevance of the criminal offense to the candidate’s ability to perform the job.
- The time elapsed since the offense occurred.
- The candidate’s age at the time of the offense.
- The job’s specific duties and responsibilities.
Employers may assign different levels of importance to these factors, depending on the circumstances. Importantly, if a candidate requests it, employers must provide a written statement within 30 days explaining the reasons for the denial of employment. This process ensures that employment decisions involving candidates with criminal convictions are fair, transparent, and consistent with New York’s emphasis on rehabilitation and reintegration into the workforce.
Local Regulations in New York
Several municipalities and counties in New York have added their own restrictions. A notable example is New York City’s “fair chance” law, which prohibits employers from asking about, requesting, or referring to a candidate’s criminal history until after making a preliminary, conditional job offer. The law also requires employers to provide additional disclosures to the candidate and explain any decision to revoke a job offer based on the criminal background check results, mirroring some requirements under New York State law.
Similar laws exist in the cities of Buffalo and Rochester and the counties of Suffolk and Westchester. These laws impose additional obligations or restrictions on employers regarding criminal background checks. An attorney can help examine whether a local law or ordinance defines your rights as an employer to investigate and consider a candidate’s criminal record.
Get Legal Help
The laws governing criminal background checks are varied and highly complex, often requiring a careful analysis of multiple layers of law from different sources. The experienced attorneys at Jackson LLP can provide the guidance you need to ensure your hiring practices are compliant at every level of government. If you operate in one of the states where we practice, set up a free consultation call to discuss how we can assist you.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.
