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As the
effective date of February 1, 2009 draws near, many opinions on
the applicability of the NY Corrections Law are being published.
By all accounts, the law is not entirely clear as to what hiring
situations trigger the requirement of providing a copy of the law
to an applicant/employee before a criminal search is requested,
and then again if a criminal record is found in the background
check.
ESS has been advised that the law
is a "General Business Law" for New York and thus a business with
"minimum contacts" in New York would not have to follow this
provision. The statute specifically refers to New York
employers. ESS adopted this position as explained in the previous
e-update, but other legal opinions have taken a broader
perspective and suggest the law should apply not only to all
NY-based employers, but to all New York applicants/employees
residing in New York, regardless of the location of the employer.
ESS wants to support practices of
maximum possible protection for our clients, therefore, given
the more conservative approach suggested by some, we are now
implementing a new function into our program.
As of February 1, if your ESS
account is based out of New York, or if your applicant is a New
York resident, and if the screening comes back with a criminal
record found, ESS will automatically send back with the criminal
record a letter of explanation and a copy of the law. You
may then forward the letter and law to your applicant/employee.
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