Less than two months after the effective date of a new law barring employers’ use of credit checks, another new law restricting the pre-employment process takes effect in New York City today, October 27, 2015 (the Fair Chance Act or the Act). As we previously reported here, the Act prohibits employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended. The term “inquiry,” as defined in the Fair Chance Act, includes questions posed to the job applicant him/herself, as well as pre-offer searches of public records and certain consumer reports.
In addition, for employers that intend to take an adverse employment action based on a criminal inquiry made after a conditional offer is extended, the Fair Chance Act prescribes a rigorous notice procedure:
- First, the employer must provide a copy of the relevant inquiry to the job applicant (in a manner to be determined by the city’s fair employment practices agency, the NYC Commission on Human Rights (NYCCHR)).
- Next, the employer must perform the analysis set forth in Article 23-A of the State Correction Law to determine whether the applicant’s criminal past warrants disqualification from employment. The employer must then provide a copy of its analysis to the applicant. Late last week, the NYCCHR published a template form, known as the Fair Chance Notice, for use in such circumstances.
- Finally, following an applicant’s receipt of these disclosures, the employer must afford the applicant at least three business days to respond. During this period, the employer must hold the position open for the applicant.
Failure to adhere to these stringent protocols may be deemed a violation of the Fair Chance Act.
Like NYC’s recent credit check legislation, the Fair Chance Act contains several exemptions. The Act does not, for instance, apply to:
- Applicants for employment as a police or peace officer.
- Applicants for certain positions within the department of citywide administrative services.
- Actions that an employer takes pursuant to a state, local, or “federal” law that (i) requires the employer to conduct criminal background checks, or (ii) bars employment based on criminal history. A “federal” law, for purposes of the Fair Chance Act, includes rules or regulations promulgated by a self-regulatory organization under section 3(a)(26) of the Securities Exchange Act of 1934.
These exemptions, however, are expected to be narrowly construed by the NYCCHR.
New Job Posting Restrictions
The Fair Chance Act does more than just ban the proverbial box. For instance, it also outlaws job postings that “express, directly or indirectly, any limitation, or specification in employment based on a person’s arrest or criminal conviction.”
This provision may have the most resounding impact on NYC employers, especially those that already include language on job postings about candidates with criminal histories. For such employers, an immediate review of all job postings, both electronic and in print, is in order.
Coupled with the recent ban on pre-employment credit checks, the Fair Chance Act will likely require many employers to overhaul their hiring processes. Consequently, all NYC employers, especially those with a multistate presence, should scrutinize and consider revising, as appropriate, each step in their pre-employment processes.