by Katherine Ritts Schafer
An amendment to New York state’s Social Security Number Protection Law goes into effect today, and employers need to understand its implications.
Although there are a number of exceptions, employers generally are prohibited from requiring an individual to disclose or furnish his Social Security number (SSN) “for any purpose in connection with any activity.” The amendment also bars employers from refusing any service, privilege, or right to an individual, in whole or in part, because he refuses to disclose or furnish his SSN.
The prohibition doesn’t apply to the state or its political subdivisions when an SSN is (1) expressly required by a federal, state, or local law or regulation or (2) requested for purposes of employment, including in the course of administration of a claim, benefit, or procedure related to an employee’s employment. The exception includes an employee’s termination or retirement or circumstances in which a worker suffers an injury during the course of employment.
The amendment also contains an exception when an SSN is requested in connection with a lawful consumer report or investigative consumer report. Because the terms “consumer report” and “investigative consumer report” apply only when background checks are conducted by a third-party consumer reporting agency, the exception doesn’t appear to cover circumstances in which an employer requests an applicant’s SSN to conduct its own background check.
Another exception covers circumstances in which an SSN is requested for purposes of determining whether an individual has a criminal record. However, other types of preemployment background checks (e.g., educational and previous employment checks and those involving motor vehicle records) aren’t covered by the exception. In those circumstances, an employer may not request an applicant’s SSN.
The amendment’s prohibition against required disclosure doesn’t apply when the individual previously has given consent to use his SSN. Nevertheless, you should keep in mind that even if an individual consents and discloses his SSN, the rules contained in the current law still apply. Thus, for example, regardless of whether an employee consents to provide his SSN, employers are prohibited from:
1. Communicating the number to the general public;
2. Printing the number on any card or tag required to access facilities or privileges; and
3. Requiring an individual to transmit his SSN over the Internet unless the connection is secure or the number is encrypted.
Katherine Ritts Schafer is an associate at Bond, Schoeneck & King, PLLC, in the Syracuse office and a contributor to New York Employment Law Letter, which published a thorough analysis of the new law in its November issue. She can be reached at firstname.lastname@example.org or 315-218-8243.