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.