On June 10, 2015, the New York City Council approved a new law
prohibiting public and private sector employers from inquiring
about a job applicant's criminal record history before making a
conditional offer of employment. The new law, dubbed the "Fair
Chance Act," adds New York City to a growing list of state and
local jurisdictions with bans against employers' inquiries into
prospective employees' arrest and conviction records. On a
state-wide level, New York State had already prohibited employers
from rejecting a job applicant on account of his or her conviction
history unless the conviction related to the applicant's
fitness to perform the job or suggested an unreasonable risk to
property or public safety. Now, however, New York City employers
may find themselves in hot water for merely asking about criminal
history within their job applications. Below is a quick summary of
what employers need to know about the new city-wide law.
What does the Fair Chance Act prohibit?
Employers with four or more employees who work in New York City
are now barred from inquiring about an applicant's arrest or
conviction history until after the employer issues a
conditional offer of employment to the applicant. Notably, the law
defines an inquiry into arrest or conviction history as a written
or oral question issued to the applicant, a search of public
records, or performance of a background check.
What does the Fair Chance Act require of employers?
The law takes effect 120 days from Mayor Bill de Blasio's
signature of approval, which by all accounts the Mayor is expected
to provide very soon. Beginning on that date, covered employers
must follow a three-step procedure for inquiries about an
applicant's criminal history:
- First, the employer must issue a written copy of the inquiry in a manner to be determined by the New York City Commission on Human Rights (the "Commission"). Although the law is mum about whether the Commission will issue a mandatory inquiry form or simply prescribe requirements for such inquiries, employers will at least need to tailor their criminal history inquiries accordingly.
- Second, before a conditional offer of employment is revoked, employers must provide the applicant a written copy of its analysis of the criminal history, including the reason(s) it revoked the conditional job offer and the supporting documents that formed the basis of the employer's decision, e.g., the criminal history results.
- Finally, the employer must allow the applicant a reasonable amount of time – no less than three business days – to respond to the revocation of the job offer, during which time the employer must hold the position open for the applicant.
What penalties may an employer face for violations?
The law adds illegal inquiries (as described above) or improper consideration of an applicant's criminal history to a long list of discriminatory employment practices prohibited under New York City's Administrative Code. Like other forms of discrimination, applicants who prove an employer violated the Fair Chance Act may file an administrative claim or lawsuit in which they seek compensatory damages, punitive damages, and reasonable attorneys' fees. A plaintiff may also seek injunctive relief in the form of an order requiring he or she be hired, among other things. Even worse for large employers, these types of claims often lend themselves to costly class actions because of the relatively high volume of applications received.
What should employers do now?
As a preliminary matter, covered employers should take immediate
steps to remove questions on their job applications regarding
criminal history. Employers should also train management and other
personnel who conduct job interviews to avoid asking questions
regarding arrest or conviction records. Once the law takes effect,
employers will need to further ensure that their written criminal
history inquiries comply with the Commission's
requirements.
More than anything, however, the Fair Chance Act raises the bar for
whether an employer has properly considered an applicant's
conviction record when revoking a conditional job offer. Under New
York State law, employers may not reject a candidate's job
application based upon a criminal conviction unless there is a
direct relationship between the criminal offense and the employment
sought or, alternatively, hiring the applicant would involve an
unreasonable risk to property or to the safety of others. Prior to
the Fair Chance Act, employers could review an applicant's
criminal history but still reject the application for reasons
unrelated to the applicant's criminal conviction. So long as
the employer could prove it would have rejected the applicant
regardless of his or her criminal conviction, the employer would
have a strong defense against a discrimination lawsuit based upon
the applicant's conviction. Now, under the Fair Chance Act,
employers must issue a conditional job offer before even inquiring
about an applicant's criminal history. This requirement
eliminates the "mixed motive" question previously
relevant to conviction discrimination lawsuits, because the only
factor left for consideration when revoking the conditional job
offer will be the applicant's criminal history.
Other jurisdictions outside New York City have either already
implemented or are considering similar prohibitions against
employers' criminal record inquiries. As with most new laws
that impose additional requirements on employers, one of the best
ways for employers to minimize legal risk is to consult with
employment attorneys regarding their internal forms and procedures.
In particular, employers should evaluate their policies and
practices for job applications, train their employees, and consult
with legal counsel regarding any job offer revocations based upon
an applicant's criminal history.
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.