New York City has joined several states and municipalities throughout the country with "ban the box" laws that serve to limit employers' use of criminal conviction and arrest records in the hiring process. The Fair Chance Act, which becomes effective on October 27, 2015, amends the New York City Human Rights Law. Under the Act, it is an unlawful discriminatory practice for an employer to make an "inquiry" or "statement" about a person's criminal conviction or pending arrest record before extending a conditional offer of employment.
An "inquiry" includes any question communicated to an applicant and any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant's criminal background information. Similarly, the term "statement" means any statement communicated to an applicant in order to obtain information relating to the person's arrest or conviction record, including through a criminal background check.
If an employer extends a conditional offer to a candidate and subsequently decides not to hire the individual based on the results of a criminal background check, the Act requires the employer to follow specific notice requirements. The employer must:
- Provide the applicant with a copy of the employer's inquiry that sought criminal history information;
- Perform an analysis required under Article 23-A of the New York Corrections Law;
- Provide the applicant with a written copy of the analysis, including any supporting documents and reasons for the employer's decision; and
- Provide the applicant with at least three (3) business days to respond to the analysis, and hold the position open during this time.
Under Article 23-A of the New York Corrections Law, an employer that intends to deny employment to a candidate based on a criminal record must analyze:
- If there is a direct relationship between the person's criminal conviction and the position sought or held by the individual; and
- If hiring or continuing to employ the individual would involve an unreasonable risk to property or to the safety or welfare of others or the general public.
Article 23-A requires employers to consider several factors, including: the duties and responsibilities of the position; the bearing a criminal offense may have on the individual's ability to perform the duties and responsibilities of the position; the age of the individual at the time of the conviction and time that has elapsed; the seriousness of the offense; and any information offered by the individual regarding rehabilitation and good conduct.
Interaction with Other Laws
Private employers that are required by federal, state or local laws to conduct background checks or are barred from hiring individuals with criminal histories are exempted from the Act's requirements.
Furthermore, the Act's restrictions and notice requirements are not the only issues relating to an applicant's criminal history that must be considered by New York City employers when making hiring decisions. Under the New York State Human Rights Law, employers are prohibited from inquiring about or considering any arrest or criminal accusation not then pending against an applicant that was resolved in the individual's favor or resulted in a youthful offender adjudication or sealed conviction. Therefore, even if an employer decides to inquire about an applicant's pending arrests after extending a conditional offer of employment, prior arrests that are not pending and did not result in a conviction remain off-limits.
Any background check that requests consumer credit history information may also run afoul of New York City's "Stop Credit Discrimination in Employment Act." As we noted in our recent Labor & Employment Alert (click here to view), this statute prohibits private employers from requesting or using the consumer credit history of job applicants and employees, subject to a few narrow exceptions.
With the Fair Chance Act going into effect soon, employers in New York City should remove questions relating to arrest or criminal history from job applications. Requests for pre-employment criminal background checks should also be postponed until after a conditional offer of employment has been extended. Moreover, companies that decide not to hire a candidate based on the results of a criminal background check are advised to consult with counsel to ensure compliance with the law's notice requirements.
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