The New York City Council has passed and Mayor DeBlasio has signed a new employment law known as the “Fair Chance Act” (the “Act”). The Act is sometimes referred to as “ban the box” legislation because it prohibits a specific type of “check-the-box” question that is often found on employment applications. The Act, which amends the New York City Human Rights Law, will take effect on November 26, 2015.
In brief, the Act prohibits employers from inquiring about job applicants’ criminal arrests and convictions prior to hire. Employers will be permitted to make such inquiries only after an applicant receives a conditional job offer, and even then, only when specific requirements are met. In brief, the Act:
- applies to all New York City employers with four or more employees;
- applies to workers even if they are classified as independent contractors by the employer (excluding independent contractors who have their own employees);
- prohibits employers from specifying that employment decisions will be based upon a person’s arrest or criminal conviction record; and
- generally prohibits employers from inquiring (which includes questions to the applicant, searches of publicly available records, or background checks covered under the New York City Fair Credit Reporting Act) about a job applicant’s arrest or criminal conviction record prior to hire.
Employers are permitted to inquire pre-hire about an applicant’s criminal background convictions (but not generally about arrests) only after extending a conditional offer and only if the employer:
- provides the applicant with a written copy of the background inquiry (in a manner to be determined by the New York City Commission on Human Rights);
- performs an analysis of the inquiry under Article 23-A of the Correction Law (which restricts employers’ ability to consider an applicant’s past offenses in making hiring decisions), including documentation of the analysis and the reasons for any adverse employment decision, and provides the analysis to the applicant; and
- allows the applicant at least three days to respond to the decision, while holding the position open for the applicant during that period.
There are three narrow exceptions, under which the Act does not apply to:
- positions in law enforcement;
- positions for which a criminal background check is required by law; and
- positions that are susceptible to bribery or that involve the safeguarding of persons vulnerable to abuse, as determined by the New York City Commissioner of Citywide Administrative Services.