Overview
The criminal background check (CBC) of a prospective employee or volunteer begins after:
- A provider has identified someone who would have regular and substantial unsupervised or unrestricted contact with persons receiving services in the NYS Office of Mental Health (OMH), the Office for People With Developmental Disabilities (OPWDD) programs, or the Office of Children and Family Services (OCFS) residential programs for children; and
- A provider has conducted a Staff Exclusion List (SEL) check and the individual is not on the list.
Process
Providers designate staff members as Authorized Persons (AP) who are responsible for registering an applicant for fingerprinting and receiving the results of the background check. Providers utilize the firm MorphoTrust and its IdentoGO website for fingerprint registration. Please note, the applicant should be the “final” candidate for the position.
The Justice Center reviews the information received after fingerprinting and makes a suitability determination for the provider. The AP is sent a secure email message advising that the results of the determination are available in the Justice Center’s CBC system.
Applicants previously fingerprinted for work at a different agency must still undergo the fingerprinting process for the new position.
Temporary Approval: Providers may “temporarily approve” applicants and permit them to begin service if they do not have “unsupervised” or “unrestricted” physical contact with individuals receiving services. The provider must then update the applicant’s employment status in the CBC system to “Temporarily Approved Pending Criminal History Check.” More information is outlined in the Justice Center regulations.
Third Party Contractors: Providers intending to utilize the services of third-party contractors should first contact their State Oversight Agency to inquire about its policies regarding criminal background checks of such prospective employees.
Disqualifications
The law specifies certain crimes that may "presumptively" disqualify an applicant from further consideration. They are:
- A felony conviction at any time for a sex offense;
- A felony conviction within the past ten years involving violence;
- A conviction pursuant to Penal Law (PL) section(s) 260.00, 260.25, 260.32 or 260.34; or
- Any similar offense in any other jurisdiction outside of New York State.
If a criminal history contains a conviction for any of these types of crimes, an applicant is not to be hired unless the Justice Center determines, after conducting a review pursuant to Article 23-A of the Correction Law, that the health, safety, and welfare of the provider's clients would not be jeopardized.
If the Justice Center considers issuing a denial, the agency is required by law to give an applicant the opportunity to explain why their application should not be denied. The Justice Center is also required by law to consider mitigating factors that support New York State’s policy to encourage the employment of people with criminal convictions. Factors include whether a direct relationship exists between the previous criminal activity and the position being sought, how old the applicant was, and how much time has passed since the offense was committed.
Determinations
The Justice Center will notify the authorized persons of the provider indicating one of the following determinations and status updates:
| Determination | Meaning | Next Steps |
| Denial | Applicant has been denied employment based on their criminal history | The applicant has been denied employment. No next steps available with the Justice Center. |
| Held in abeyance | A determination is not being made due to a pending criminal charge | A “certified disposition” from the court is available when an applicant’s open criminal charge is resolved. Applicants should provide this certified document to the provider of service that requested the criminal background check. The provider will share this with the Justice Center for consideration. |
| Not Denied – Not Held in Abeyance | Clearance indicating that the applicant has a criminal history that includes a pending misdemeanor offense(s), but that the provider may consider approving the applicant for hire/volunteer service | The Justice Center notifies the provider of service of the applicant’s criminal history, and the provider will make the final employment decision. |
| Not Denied – Criminal History | Clearance indicating the applicant has a criminal history, but that the provider may consider approving the applicant for hire/volunteer service | The Justice Center notifies the provider of service of the applicant’s criminal history, and the provider will make the final employment decision. |
| Non-Denial – No Criminal History | Individual may have been printed civilly for employment or an arrest(s) that did not result in a criminal conviction | The Justice Center notifies the provider of service of the result and the provider will make its final employment decision. |
| Not Denied – NonIdent | Clearance indicating the applicant had never been fingerprinted before, either civilly for employment or criminally for an arrest | The Justice Center notifies the provider of service of the result and the provider will make its final employment decision. |
| Status Update | Meaning | Next Steps |
| None-Being Processed | A determination on suitability for employment has not yet been made | The applicant will be receiving a correspondence sent to the address provided during the fingerprint registration process. The correspondence will advise of the next steps and will include examples of rehabilitation, frequently asked questions, and documentation on how to challenge the criminal history being reported. |
In addition, the Justice Center must notify OPWDD providers if a candidate has a final, substantiated Category 2 finding. The finding does not automatically bar applicants from the position they are seeking, but should be used by providers to assist in making their hiring decisions.
The Justice Center will also inform the AP what actions the provider should take. A summary of the individual’s New York State criminal history will be included in the determination. Federal law prohibits dissemination of information obtained from an FBI check.
Criminal History
A criminal history does not automatically mean an application will be denied. The Justice Center may not deny employment without first providing the applicant with an opportunity to show, in writing, how they have had a positive change/improvement. The Justice Center will consider any information that demonstrates efforts at rehabilitation or a record of good conduct.
Evidence of Good Conduct
The Justice Center provides a list of examples of evidence of rehabilitation along with the request for evidence of rehabilitation. These include:
- Certificates of completion of anger management programs
- Certificates of completion of substance abuse treatment
- Documentation showing educational achievements, participation in vocational training programs, and work-related achievements
- Certificate of completion of employment training programs for employment in the human services field
- Letters of support from people that can verify your employment and good character (letters from the prospective employer, parole or probation officer, previous employers, etc.)
Timing
The applicant will have 20 days from the date of receipt of the letter to provide proof to the Justice Center. Requests for additional time to respond must be made to the Justice Center as soon as possible. Please call (518)549-0361 or e-mail is [email protected]. Decisions on extensions are made on a case-by-case basis.
“Certificate of Relief from Disabilities” and “Certificate of Good Conduct”
A Certificate of Relief from Disabilities and a Certificate of Good Conduct are documents that can help people with convictions obtain employment. The certificates are evidence of rehabilitation that you should provide in your response to the Justice Center. The agency must consider the certificates as significant evidence of rehabilitation. The applications for Certificate of Relief from Disabilities and a Certificate of Good Conduct Information can be found on the New York State Department of Corrections and Community Supervision website here:
Employment Status Reports (Providers)
Providers must update the Justice Center’s CBC system within 14 days of a change in employment status when an:
- Applicant has been hired or not;
- An individual is no longer employed by or affiliated with the provider;
- An application has been withdrawn; or
- An individual is placed on administrative leave.
If an employee/volunteer takes a leave of absence, the provider is not required to update that person’s status. Likewise, if a seasonal employee is expected to return the next year, the provider does not have to update the CBC system.
Arrests (Providers)
If an employee or volunteer is arrested in New York, the Justice Center will notify the provider's AP. The provider is then responsible for conducting a facility safety assessment and taking all steps necessary to protect the people they are serving. The assessment must be maintained and if requested, forwarded to the audit unit of the applicable State Oversight Agency. The provider is additionally responsible for inquiring about the outcome of any pending charge if the individual remain in service.
Additional Checks
Certain providers must run additional background checks.
NYS Mental Hygiene Law §16.34 Checks for OPWDD Providers
OPWDD providers are required to request Mental Hygiene Law §16.34 checks for prospective employees and volunteers. The request must be made through OPWDD. Information about this process is available at OPWDD.
Statewide Central Register Checks
Certain providers under Justice Center jurisdiction must also check the Statewide Central Register of Child Abuse and Maltreatment (SCR), operated by the New York State Office of Children and Family Services (OCFS). Providers should contact OCFS for information.
Keep On File (Providers)
Providers are required to keep the following forms on file:
- The Applicant Consent Form for Fingerprinting, signed by the applicant, for six years after the party ceases to be a subject individual (generally, when they are no longer an employee); and
- Safety assessments upon notification of a subsequent arrest of an employee or volunteer.
CBC Guidance & Resources
The Justice Center maintains a list of all related Criminal Background Check documents and forms, which include guidance for providers, training information, and other information specific to oversight agencies.