Joining state and local jurisdictions across the country, New York City has enacted a “Ban the Box” law that limits employers’ inquiries into the criminal background of job applicants and imposes stringent requirements on employers who intend to make hiring decisions based on such information.
The Fair Chance Act, effective as of October 27, 2015, prohibits employers who are based in NYC or otherwise have employees in NYC from asking candidates about their pending arrests or criminal convictions until after extending a conditional offer of employment. Further, employers are restricted from publishing job postings that state or imply that a person with a criminal record is automatically ineligible for the position.
An NYC employer who chooses to inquire about an applicant’s criminal history at that time faces strict requirements. An employer cannot take adverse employment action against the applicant before:
- Providing a written copy of the inquiry to the applicant in a manner to be determined by the NYC Commission on Human Rights;
- Performing an analysis of the applicant pursuant to the New York State Correction Law (discussed below) and providing a written copy of the analysis to the applicant specifying the basis for the adverse employment action; and
- Giving the applicant at least three business days to respond, during which time the position must be held open.
The Fair Chance Act incorporates the New York State Correction Law, which already prohibits employment discrimination against candidates with criminal backgrounds and requires employers in New York State to consider the following factors when evaluating a prospective employee with a criminal background:
- New York State’s public policy to encourage the employment of individuals with prior criminal convictions
- The duties of the position
- The bearing of the criminal offense(s) on the applicant’s fitness to perform those duties
- The amount of time that has passed since the offense(s) occurred
- The applicant’s age at the time of the offense(s)
- The seriousness of the offense(s)
- Any information produced by or for the applicant regarding his or her rehabilitation and good conduct
- The employer’s interest in protecting property and ensuring safety
An exception to the Fair Chance Act applies when the employer is required by federal, state, or local law to conduct criminal background checks or to hire only those applicants who pass certain screening requirements. Applicants for employment as police officers and in certain city departments and agencies are also not covered by the law. The Act also specifies that it is not intended to prevent an employer from taking adverse action against an employee or denying employment to an applicant for reasons other than criminal background history.