An Employer’s Guide to Article 23-A

Overview 

Article 23-A of New York’s Correction Law pertains to hiring persons previously convicted of one or more criminal offenses. It was established to prevent employers from wrongfully rejecting or terminating employment because of an individual’s criminal history. 

The Article institutes guidelines on how employers must evaluate candidates and current employees based on prior criminal offenses, along with exceptions to consider on a case-by-case basis. The document also outlines how employers must inform candidates and current employees of Article 23-A. 

Factors to Consider 

When evaluating a potential hire with a record of criminal misconduct, here are the eight factors to consider as stated by Article 23-A:

1. New York State’s public policy of supporting the employment of candidates with an existing criminal history. 
2. The specific duties and obligations immediately related to the license or employment sought. 
3. The bearing, if any, the criminal offense or offenses will affect their ability to perform one or more such duties or obligations. 
4. The time elapsed since the occurrence of the criminal offense or offenses. 5. The person’s age at the time of their criminal offense or offenses. 
5. The severity of the offense or offenses. 
6. Any information produced for or by the person regarding their good conduct and rehabilitation. 
7. The legitimate interest of the public agency or private employer in protecting the property, safety, and welfare of specific individuals or the general public. 
8. The age of the person at the time of occurrence of the criminal offense or offenses.

Exceptions 

There are two exceptions to the factors listed above that should be considered when dealing with a potential or current employee with a criminal history. They are as follows: 

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

Informing Applicants and Employees 

There are three primary ways in which employers must inform potential and current employees of Article 23-A: 

1. Employees must post a copy of the law in the office or workplace that is accessible to employees in a visually noticeable manner. 
2. Employers are required to provide a copy of Article 23-A to any applicant subject to a background check. The document is typically offered at the beginning of the application process by attaching the Article to the application form or as part of the background check process. A signature from the applicant acknowledging they received and read the copy of the Article is considered best practice.
3. Whenever a consumer report containing criminal conviction information is given to the employer, a copy of the Article must be given to the applicant. In addition, a complete copy of Article 23-A should be given to the consumer along with a copy of the report. 

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*Disclaimer: This Article does not constitute legal advice. Please reach out to your provider for more guidance on this matter.