United States: Proposed Ban The Box Regulations Would Impose Additional Burdens On Employers

On February 16, 2016, the New York City Commission on Human Rights (the "Commission") issued proposed rules to establish definitions and clarify certain requirements under the Fair Chance Act ("FCA"). The FCA, often referred to as the "ban the box" legislation, went into effect on October 27, 2015 and places significant new restrictions on an employer's ability to request or use criminal history in hiring and other personnel decisions. The proposed rules largely mirror the FCA's Legal Enforcement Guidelines that we summarized in our last issue of the Employment Law Update, but place additional burdens on employers. Key aspects of these additional restrictions regarding an employer's use of job applications and the circumstances in which a conditional job offer may be revoked are discussed below.

Restrictions Concerning Job Applications

The proposed rules seek to limit an employer's use of job applications in three important ways:

  • First, under the proposed rules an employer may not use an employment application that contains language asking applicants to authorize a criminal background check.Such a request may be made only after a conditional offer of employment is extended.
  • Second, the proposed rules appear to provide that, in the pre-offer stage, an employer may not even state that a background check is required for a position.
  • Third, the proposed rules further prohibit, in the pre-offer stage, the use of multistate job applications or other forms that ask applicants or employees to consent to criminal background checks or provide information concerning their criminal history, even if the application includes a disclaimer or instruction to New York City applicants and employees to disregard these request or questions.

Importantly, engaging in any of the above-referenced conduct constitutes a per se violation of the FCA regardless of whether the employer takes an adverse employment action or actual injury occurs as a result.

Fair Chance Process Applied to Pending Arrests

The FCA explicitly requires that prior to revoking a conditional offer based on an "applicant's arrest or conviction record" an employer must conduct an Article 23-A analysis – the analysis mandated under New York State law for employers considering criminal history – provide the applicant with a copy of such analysis and the results of any criminal background checks, and offer the applicant a reasonable amount of time in which to respond to the employer's findings. The proposed rules make clear that an employer must engage in these procedures – known as the "Fair Chance Process" – prior to revoking a conditional offer based not only on an applicant's or employee's criminal history but also on a pending criminal action. Because the language of Article 23-A relates only to past "convictions," the Commission's application of the requirement to engage in the Fair Chance Process to pending criminal cases is a significant extension of the law's requirements.

An Applicant's Failure to Provide Accurate Information

The proposed rules also address situations where an applicant fails to provide accurate information about his or her conviction history or a pending criminal case. According to the proposed rules, an employer may revoke a conditional offer or take any other adverse employment action based on such conduct; however, the language of the rules appears to require a showing that the employee's information or omission was purposefully deceptive: "If a background check reveals that an applicant or employee has intentionally failed to answer a legitimate question about their conviction history or a pending criminal case, the employer may revoke the conditional offer ..." The burden of showing that the applicant or employee intentionally withheld information or gave inaccurate information – a burden we expect will be placed upon the employer – may be difficult to sustain.

With the comment period now closed and the March 21, 2016 public hearing past, employers should be on the lookout for the Commission's promulgation of final rules. We will continue to closely monitor these significant changes and report on them in subsequent editions of the Employment Law Update.

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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