New York City “Bans the Box”
Service : Background Screening
New York City enacted Int. 0318-2014, i.e. the Fair Chance Act (the “Act”), into law, barring employers from inquiring into a job applicant’s criminal history until a conditional offer of employment has been made.1
The Act also provides additional protections to current and prospective employees with criminal histories. The bill was signed by Mayor Bill de Blasio on June 29, and the new law took effect on October 27, 2015.
Current City & State Laws
The New York State Human Rights Law makes it an unlawful discriminatory practice for an employer to inquire about or take an adverse action based upon an applicant or employee’s prior arrest records or a criminal accusation that is not currently pending against that individual, or which has been resolved in favor of that individual, resolved by a youthful offender adjudication or resulted in a sealed conviction.2
Thus, even prior to the Act, under New York law, employers were only permitted to inquire into pending arrests and convictions. This law continues to remain in place, but the Act further limits this permissible inquiry by delaying its timing until after a conditional offer of employment is extended.
Another important existing requirement is set forth in the New York Fair Credit Reporting Act, which requires employers to provide applicants with a copy of Article 23-A before obtaining a background check on the individual.3
The Fair Chance Act
As previously mentioned, the Act further restricts employers from making any otherwise lawful criminal history inquiries—about pending arrest records and convictions—until after a conditional offer of employment is made. The term “inquiry” would include questioning the applicant directly as well as any pre-offer searches of publicly available records or consumer reports that are conducted for the purpose of obtaining criminal background information. For purposes of this subsection of the Act, the term “employer” only includes employers with four or more employees.
An applicant also cannot be required to respond to any inquiry or statement that violates the aforementioned restrictions on criminal record inquiries and any refusal to respond to any such inquiry cannot disqualify an applicant from the prospective employment.
In addition, the new law requires employers to delay asking applicants for authorization to obtain a background check until after a conditional offer of employment is made. The Act makes it an unlawful discriminatory practice for an employer to “[d]eclare, print or circulate or cause to be declared, printed or circulated any solicitation, advertisement or publication, which expresses, directly or indirectly, any limitation, or specification in employment based on a person’s arrest or criminal conviction.” Enforcement Guidance issued by the NYC Commission on Human Rights elaborates on this, stating that “[s]olicitations, advertisements, and publications encompass a broad variety of items, including, without limitation, employment applications, fliers, handouts, online job postings, and materials distributed at employment fairs and by temporary help firms and job readiness organizations. Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check.”4 Thus, employers must ensure that applicants are only being asked to authorize the procurement of a background check after a conditional offer of employment has been made.
Additional Adverse Action Procedures
After extending a conditional offer of employment, the employer is permitted to inquire into an applicant’s pending arrest or conviction record. However, before the employer can take any adverse employment action based on that information, the employer must:
- Provide a written copy of the criminal record inquiry to the applicant in a manner to be determined by the commission;
- Perform the Article 23-A analysis mentioned below and provide the applicant with a copy of the analysis (which must include any supporting documentation that formed the basis for the adverse action and the employer’s reason for taking the adverse action); and
- Allow the applicant a reasonable period of time to respond (no less than three business days) after giving him or her the inquiry and analysis information mentioned above, and hold the position open for the applicant during this period of time.
The New York State Correction Law Article 23-A5 requires employers to undertake a multifactor, case-specific analysis to evaluate whether there is a direct relationship between the applicant’s prior criminal history and the position sought. Both city and state laws prohibit employers from discriminating against applicants based on their prior criminal conviction(s), unless:
- There is a direct relationship between the previous criminal offense and the specific position sought; or
- Hiring the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
If the employer contemplates taking an adverse action based on criminal record information learned after extending a conditional offer of employment, the employer must conduct this Article 23-A analysis and provide a copy of the analysis to the applicant. These requirements are in addition to the pre-adverse and adverse action notices required by the federal Fair Credit Reporting Act (“FCRA”).
The Act provides an exemption for and does not apply to any actions taken by an employer pursuant to any state, federal or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. Under the Act, a “federal” law includes any rules or regulations promulgated by a self-regulatory organization as defined by Sec. 3(a)(26) of the Securities Exchange Act of 1934.
The Act also provides an exemption for police or peace officers, and for certain positions within the department of citywide administrative services.
The full text of the Act can be found here.
1 The outline and content of this writing is based in large part on the following article: Mark Goldstein & Cindy Minniti, BREAKING: NYC “Bans the Box,” Barring Most Pre-Employment Criminal Inquiries, REED SMITH LLP (June 10, 2015, http://www.employmentlawwatch.com/2015/06/articles/employment-us/breaking-nyc-bans-the-box-barring-most-preemployment-criminal-inquiries/.
2 New York State Human Rights Law §296(16).
3 NY Gen. Bus. L. § 380-g(d) & §380-c(b)(2)
4 NYC Commission on Human Rights, Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 4-5 (2015), http://www.nyc.gov/html/cchr/ downloads/pdf/FCA-InterpretiveGuide.pdf.
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