NYC Passes Ban-the-Box Legislation
On June 29, 2015, Mayor Bill de Blasio signed into law the Fair Chance Act (FCA), which largely prohibits employers from seeking information from job applicants regarding their criminal histories during the application process. The law goes into effect on Tuesday, October 27, 2015.
The FCA, similar to other “ban-the-box” laws, prohibits an employer with at least four employees from inquiring about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been made. Given the FCA’s definition of “inquiry,” prior to making an offer NYC employers may not ask such prohibited questions in writing or verbally, and may not search publicly available records or consumer reports to obtain information about an individual’s criminal history.
There are limited exceptions to these prohibitions where the FCA will not apply, including (i) actions taken by an employer pursuant to applicable law that requires criminal background checks for employment or bars employment based on criminal history, and (ii) applications for a position as a police or peace officer, at a law enforcement agency, or other positions listed by the department of citywide administrative services that involve law enforcement, are susceptible to bribery or involve the safeguarding of individuals vulnerable to abuse. The latter exception is focused on public employers.
Once a conditional offer of employment is made, an employer may inquire about an individual’s prior criminal convictions. However, if an employer makes such an inquiry and determines that the criminal history warrants an adverse employment action, a burdensome process must be followed. Specifically, this process requires employers to:
- Provide the applicant with a written copy of the inquiry in a manner to be determined by the New York City Commission on Human Rights;
- Perform an analysis pursuant to Article 23-A of the New York Correction Law, which prohibits an employer from unfairly discriminating against a job seeker with a criminal history;
- Provide the applicant with a copy of its analysis in a manner to be determined by the City Commission, which must include supporting documents and an explanation of the employer’s reason for taking any such adverse employment action; and
- Allow the applicant a minimum of three business days to respond to the written analysis, holding the position open during this time.
An analysis under Article 23-A of the New York Correction Law requires employers to consider the public policy to encourage the employment of individuals previously convicted of crimes; the specific duties and responsibilities related to the employment; the bearing the criminal conviction has on the individual’s fitness or ability to perform the duties and responsibilities of the employment; the temporal proximity of the conviction; the individual’s age at the time of the criminal offense(s); the seriousness of the offense(s); information regarding the individual’s rehabilitation or good conduct; and the employer’s legitimate interest in protecting property and the safety of specific individuals and the general public.
Because the FCA is incorporated under the New York City Human Rights Law, employers that violate the FCA could be liable for compensatory damages (including front pay and back pay), uncapped punitive damages, civil penalties, and attorney’s fees, among other things. Additionally, employers who conduct background checks through the use of a consumer reporting agency must comply with the Fair Credit Reporting Act, the New York Fair Credit Reporting Act, and Article 23-A of the New York Correction Law.
As a result of the FCA, it is imperative that New York City employers remove all questions from their applications asking about arrests and/or criminal convictions. New York City employers should also review all other job application forms and procedures to ensure that inquiries into an applicant’s criminal history do not occur prior to a conditional offer being made. Furthermore, should an employer determine the need to rescind an offer in light of an individual’s criminal history, the employer must be sure to comply with the process required to give notice of the intended adverse employment action. Employers are advised to consult with their employment counsel in order to confirm compliance with the FCA and other applicable background check laws.
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