New York City is leading much of the nation in providing protection for workers against discrimination on the basis of criminal history, but federal law offers some protection as well. These protections are important for helping people reintegrate into society—particularly by finding jobs—once they have paid their debt to society. The federal Fair Credit Reporting Act (FCRA) protects job applicants’ privacy with regard to background checks by employers. While the FCRA does not limit employers’ ability to consider information obtained in a background check, it requires them to notify an applicant of an adverse decision based on a consumer report and to allow the applicant an opportunity to correct any inaccurate or incomplete information. The Federal Trade Commission (FTC) recently offered guidance to employers about their obligations under the FCRA, which prospective employees might also find useful.
The New York City Human Rights Law (NYCHRL) requires employers to follow specific procedures during the hiring process with regard to an applicant’s prior convictions. An employer may not inquire about criminal history until it has made a conditional offer of employment, and then it must follow various disclosure requirements if it makes an adverse decision because of an applicant’s criminal history. See N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq.
Under the FCRA, a “consumer report” is a collection of information about an individual that relates not only to factors like their credit history but also to their “character, general reputation, [or], personal characteristics.” 15 U.S.C. § 1681a(d). This can include criminal convictions, charges that did not lead to convictions, and arrests that did not lead to charges. The FCRA requires consumer reporting agencies, which compile and distribute consumer reports, to correct inaccurate information. It also imposes restrictions and obligations on people and businesses that request consumer reports, including employers.