December 13, 2023
 
Question:
Jennifer,
Can I rescind an offer of employment if the employment background check comes back with something bad?

Thanks, 
Dr. L

Answer:
Depends on a number of factors, including where you and employee are located. 

For New York State in general, the New York State law requires employers not discriminate against someone convicted of a crime, meaning, you cannot rescind an offer based on a background check conviction, "unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or 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." See https://www.criminaljustice.ny.gov/pio/correction-law-article-23a.pdf

New York City goes even further with protection, with the Fair Chance Act (provisions below). 

An example of when rescinding may come into play: Where you have an applicant who may have been caught, stealing, and convicted of stealing in the past. Any practice would be cautioned to not take on a thief in a role where they’re going to be handling money  Here we have a clear and reason to withdraw an offer, if a conditional, reemployment background check leads to information about prior condition for theft

All employers should conduct the background and litigation check for new potential hires so they can understand if that employee was previously litigious against an employer, and if so, for what and if that person has been convicted for any act that are related to the employment position, they may be taking.  Skipping this crucial step can be very costly on the backend if you have an employee who is looking to cause issues. 

More from NYS - 

See https://www.criminaljustice.ny.gov/pio/correction-law-article-23a.pdf
§ 753. Factors to be considered concerning a previous criminal conviction; presumption. 1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors: (a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. (b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person. (c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. (d) The time which has elapsed since the occurrence of the criminal offense or offenses. (e) The age of the person at the time of occurrence of the criminal offense or offenses. (f) The seriousness of the offense or offenses. (g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. (h) 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. 2. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.

§ 754. Written statement upon denial of license or employment. At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial.

New York City Fair Chance Act - See https://www.nyc.gov/site/cchr/law/fair-chance-act.page
 

Evaluating the Applicant Using the Fair Chance Analysis
If an employer is considering withdrawing a conditional offer of employment based on a criminal background check, it should gather the information necessary to assess each of the relevant fair chance factors, for example by requesting evidence of rehabilitation or good conduct from the candidate and confirming the applicant's date of birth as relevant to consideration of the person's age when the alleged or convicted crime occurred. An employer cannot deny employment based on an applicant's conviction history or pending case unless, after conducting an analysis of the relevant fair chance factors, it properly:

  • Determines that there is a direct relationship between the applicant's conviction history or pending case and the prospective job; or
  • Shows that employing the applicant "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."53

An employer who declines to hire an applicant based on the applicant's conviction history or pending criminal case and does not meet either exception noted above will be liable for discrimination under the NYCHRL. An employer cannot simply presume that a direct relationship or unreasonable risk exists because the applicant has a criminal record.54 Instead, the employer must analyze the applicant's prior conviction history based on the Article 23-A Factors and analyze any currently pending cases against the applicant under the NYC Fair Chance Factors (which are similar but not identical to the Article 23-A Factors). If an applicant has both a conviction history and a pending case, the employer must separately analyze each according to the relevant set of factors required under the law.

To properly establish a direct relationship between an applicant's criminal record and the job, the employer must show a connection between the specific nature of the alleged conduct in a pending case or convicted conduct and the specific nature of the job.55 An employer may not reject an applicant based on a perceived lack of good moral character because of the applicant's criminal history without having complied with the Fair Chance Process.56 If a direct relationship exists between the applicant's criminal history and the job, the employer must still determine, based on the Article 23-A Factors or the NYC Fair Chance Factors, as applicable, whether the concerns presented by the direct relationship have been mitigated, for example by the passage of time and evidence of good conduct or rehabilitation.57
To properly establish that there is an unreasonable risk, an employer must begin by assuming that no risk exists and then show how the relevant fair chance factors combine to create an unreasonable risk to people or property.58

The Article 23-A Factors applicable to conviction history are:

  • The public policy of New York State to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
  • The specific duties and responsibilities necessarily related to the employment sought or held by the person.
  • The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on the person's fitness or ability to perform one or more such duties or responsibilities.
  • The time which has elapsed since the occurrence of the criminal offense or offenses (not the time since arrest or conviction).
  • The age of the person at the time of occurrence of the criminal offense or offenses (not the age at arrest or conviction).
  • The seriousness of the offense or offenses.59
  • Any information produced by the person, or produced on the person's behalf, in regard to their rehabilitation or good conduct.
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
  • Whether the person has a certificate or relief from disabilities or good conduct, which create a presumption of rehabilitation.60

The NYC Fair Chance Factors applicable to pending cases are:

  • The policy of New York City to overcome stigma toward and unnecessary exclusion from employment of persons with criminal justice involvement;
  • The specific duties and responsibilities necessarily related to the employment held by the person;
  • The bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee's fitness or ability to perform one or more such duties or responsibilities;
  • Whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations, which shall serve as a mitigating factor;
  • The seriousness of such offense or offenses;
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public; and
  • Any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community.
  •