United States: New York City "Bans The Box"—Inquiries Into Applicants' Criminal Histories Now Significantly Restricted

On June 10, 2015, the New York City Council passed the Fair Chance Act (the "Act"), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process. With the passage of the Act, which is expected to be signed by Mayor Bill de Blasio, New York City joins a large group of other states and municipalities in passing so-called "ban the box" legislation, which refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application. The ban the box legislation stems from the use of criminal history as an employment screening tool and from concerns that criminal history is often not a reliable indicator of job performance, and moreover, may adversely affect minority groups.

SUMMARY OF THE ACT

The Act makes it an unlawful discriminatory practice under the City's Human Rights Law to "[m]ake any inquiry or statement related to the pending arrest or criminal conviction record of any person who is in the process of applying for employment with such employer or agent thereof until after such employer or agent thereof has extended a conditional offer of employment to the applicant." The definition of "any inquiry" makes clear that any oral or written questions concerning an applicant's criminal background as well as criminal background searches by the employer or a third party are strictly prohibited at the initial application stage. The definition of "any statement" also makes clear that an employer cannot make a statement designed to elicit a disclosure from the applicant for purposes of obtaining information concerning the applicant's arrest record, conviction record or a criminal background check.

Although the law prevents inquiry into an applicant's criminal history at the initial application stage, it does not prohibit such inquiry, including a criminal background check, after a conditional offer of employment has been made. In other words, the employer may inform the prospective employee that employment is contingent on his or her responses to a criminal history inquiry or criminal background check. However, 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.

  • First, 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").
  • Second, the employer must perform a multi-factor analysis under Article 23-A of the New York State Corrections Law, which forbids employers from denying employment to an applicant based on a criminal conviction unless certain criteria are met regarding: (1) the relationship between the position and the criminal offense; or (2) the safety risk to property or individuals. The employer must then provide that analysis to the applicant in writing a manner to be determined by the Commission, which shall include the "supporting documents that formed the basis for the adverse action" and a statement of the reasons for taking the adverse action.
  • Third, after giving the applicant the inquiry and analysis in writing, the applicant must be given a reasonable time to respond, which the Act prescribes shall be no less than three business days. Further, during that waiting time, the position must remain open.

Notably, in addition to the prohibition and restrictions on inquiries during the application and offer process, the law also provides that an employer is prohibited from circulating or even printing an advertisement or other posting that expresses any limitation on employment based on a person's arrest or criminal conviction.

EXCEPTIONS

The Act provides for a handful of exceptions concerning the applicability of the restrictions detailed above. First, the law provides that the restrictions "shall not apply to any actions taken by an employer or agent thereof pursuant to any state, federal or local law that requires criminal background checks for employment purposes or bars employment based on criminal history." The law makes clear that the term "federal law" includes the rules or regulations promulgated by self-regulatory organizations as defined in section 3(a)(26) of the securities exchange act of 1934 (e.g. FINRA). Employers in the financial services industry would appear to be covered by this exception considering the federal laws mandating "statutory disqualification" of certain employees who have been convicted of particular criminal offenses and the applicable rules of self-regulatory organizations such as FINRA that require inquiry into the background of applicants for registered positions through the Form U-4 and other documents. The law would also appear to exempt banking institutions subject to the Federal Deposit Insurance Act, which prohibits the employment of individuals convicted of certain offenses without FDIC consent and requires covered employers to inquire into a job applicant's conviction record. The law also includes exceptions for applications for employment as a police officer or peace officer as defined by New York law and other public employment 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.

ENFORCEMENT

The Act provides that it is enforceable against private employers through an administrative action or through a private right of action. Thus, aggrieved individuals will be able to file a complaint with the Commission (with a one-year statute of limitations) or file an action directly in court (with a three-year statute of limitations). Remedies for successful plaintiffs can include back pay, reinstatement or other equitable relief, compensatory and punitive damages, and attorneys' fees and costs.

EFFECTIVE DATE

The Act is to take effect 120 days after its signature by the mayor. However, the Act provides that the Commission shall adopt all necessary rules concerning the Act prior to the effective date. Here, considering that the Commission is charged with putting in place several procedures for employers to comply with, the effective date of the Act could be significantly delayed.

IMPLICATIONS FOR EMPLOYERS

The bottom line for most employers is that under the Act, they are still permitted continue to inquire into criminal convictions and/or require criminal background checks for prospective employees, but they are now restricted as to the timing of such inquiries and background checks. Unless one of the exceptions enumerated above applies, New York City employers are forbidden to inquire into the criminal background history of a prospective employee at the initial stages of the application progress. Only after a conditional offer of employment has been made offer may an employer make such inquiries or require a background check. Moreover, the Act does not restrict an employer's use of information obtained from a criminal history inquiry or a criminal background check. However, prior to using such information to take an adverse employment action, such as rejecting an applicant, the employer must provide the prospective employee with a copy of the inquiry or background check, undertake the analysis under Article 23-A (which New York employers are already required to do under state law), provide such analysis to the employee and give the employee a reasonable time to respond.

Because the Act only applies to individuals in New York City, employers with employees across New York State (which has not passed ban the box legislation legislation) could find themselves in the unusual position of being unable to ask about criminal history and require criminal background checks at the initial stages of the application process for applicants and employees in New York City but still able to do so for employees in other locations like Nassau and Suffolk County, where no such law has been passed. Whether such employers will modify their processes for all employees in the state or simply do so for employees in New York City remains to be seen.

In addition, employers should be mindful that use of criminal history in the hiring process could have a disparate impact on certain minority and other protected groups, a subject of recent focus by the Equal Employment Opportunity Commission. Given the recent wave of ban the box legislation, this is a good time for employers in New York City—and elsewhere—to revisit their criminal history inquiry and criminal background check processes to ensure that they are in compliance with the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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