On June 10, 2015, the New York City Council passed the Fair Chance Act (“the Act”), which makes it unlawful for employers to inquire about an applicant’s criminal background during the initial stages of the application process. The law joins other “ban the box” legislation across the nation in an attempt to ban the checkbox indicating criminal history on employment application forms. Mayor Bill de Blasio is expected to sign the bill any day, and the law will go into effect 120 days later.
The Act makes it a discriminatory practice for employers or employment agencies to inquire into an individual’s arrest or conviction record or perform a criminal background check before an employer has extended a conditional offer of employment. The Act also restricts an employer’s ability to issue any solicitation, advertisement, or publication that in any way expresses any form of limitation in employment based on a person’s arrest or criminal conviction history. Applicants are not required to respond to illegal inquiries and cannot be disqualified for not responding.
Importantly, the law does not prohibit employers from inquiring about criminal history or running background checks; it just delays the background check until an applicant can demonstrate his or her qualifications. Employers may still inform prospective employees that employment is contingent on their responses to a criminal history inquiry or criminal background check.
If the employer decides to take adverse action based on the inquiry or criminal background check, the employer must first take a number of steps:
The employer must provide a written copy of the inquiry or background check to the applicant, in a manner that will be established by the NYC Commission on Human Rights (the “Commission”).
The employer must perform a multi-factor analysis under Article 23-A of the New York State Corrections Law and then has to provide that analysis to the applicant in writing in a manner to be determined by the Commission, which shall include the “supporting documents that formed the basis for the adverse action” as well as the employer’s reasons for taking the adverse action.
After giving the applicant the inquiry and analysis in writing, the employer must allow the applicant a reasonable time to respond, which the Act states should be at least three business days. Furthermore, during that time, the position must remain open for the applicant.
The above provisions do not always apply. The law excludes certain positions that require criminal background checks by federal, state or local laws where a conviction prohibits employment, as well as police officers, peace officers, and law enforcement agencies (as those terms are defined by law). The Act also does not apply to certain positions that involve law enforcement, are susceptible to bribery or other corruption, or entail the provision of services to or safeguarding of individuals vulnerable to abuse, though if any employers in this category take adverse action based on criminal history, they must comply with item 2 above. The positions that qualify for this exemption will be enumerated by the commissioner of citywide administrative services, published as a commissioner’s calendar item, and listed on the website of the department of citywide administrative services.
The Act modifies the New York City Human Rights Law, Section 8-101 et seq. of the Administrative Code of the City of New York; thus, it does not apply to employers with less than four employees. However, for those it does cover, the damages available are among the broadest of all employment discrimination protection statutes and include the potential for back pay, front pay, unlimited compensatory damages, and unlimited punitive damages.
New York City employers are advised to take steps now to prepare for when the Act goes into effect. These steps may include, but are not limited to:
reevaluating and revising employment application forms.
updating handbook provisions and other policies and procedures as needed.
examination of the Article 23-A factors, to fully understand the written analysis that must be performed in the event a candidate is rejected due to their criminal history. Employers may want to create a template for the analysis, to increase the likelihood that no factor will be overlooked in the analysis.
providing training to all employees involved in recruiting, hiring and interviewing, to ensure they understand the parameters of the law and how, if at all, they must adjust their prior practice.
Attorneys in Gordon & Rees’s New York Employment Practice Group are available to assist employers with any questions or concerns regarding the above.