Executive Summary: On June 10, 2015, the New York City Council passed the NYC Fair Chance Act (the Act) in a landslide vote. Sponsored by New York City Council Member Jumaane Williams (D-Brooklyn), the Act amends the New York City Human Rights Law (NYCHRL) to prohibit private employers in New York City with four or more employees from inquiring into or otherwise considering an applicant's criminal background history prior to extending a conditional offer of employment to the applicant. In 2011, Mayor Michael Bloomberg signed a law that prohibits New York City government employers from asking applicants during the initial application process whether they have been convicted of a crime. The Act now extends that law to private employers with at least four employees and "bans the box" that is commonly found on job applications by which employers inquire into applicants' criminal histories.
Under the Act, employers may only inquire into an applicant's criminal history after extending a conditional offer of employment. The Act defines "inquiry" as "any question communicated to an applicant in writing or otherwise, or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant's criminal background information." The Act also prohibits private employers from distributing any advertisement that expresses any limitation or specification in employment based on an individual's arrest or criminal conviction. Employers who inquire into an applicant's criminal history after making a conditional offer of employment must comply with the following requirements before taking any adverse employment action based on such inquiry:
- provide the applicant with a written copy of the inquiry;
- perform an analysis that is required by Article 23(a) of the New York Corrections Law;
- provide the applicant with a copy of such analysis; and
- provide the applicant with three business days to respond to the written analysis, during which time the employer must hold open the employment position for that applicant.
Importantly, the Act does not apply to any actions taken by employers pursuant to any federal, state or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. Moreover, the Act exempts from coverage police officers, peace officers and certain positions within the Department of Citywide Administrative Services. Violations of the Act will be enforceable against private employers by the New York City Commission on Human Rights through an administrative procedure or a private right of action, and will be enforceable against public agencies by a proceeding brought pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR).
The Act will become effective 120 days after it is signed by Mayor Bill de Blasio, which is expected to take place shortly due to his support for the Act. Thereafter, New York City will join 17 states and more than 100 cities that have already adopted "ban-the-box" laws. However, only certain states and cities such as Hawaii, Massachusetts, Minnesota, New Jersey, Rhode Island, the District of Columbia, San Francisco and Chicago have enacted laws affecting inquiries by private employers regarding job applicants' criminal background histories.
Employers' Bottom Line: New York City employers are subject to an ever-increasing number of regulations with respect to their hiring practices. Notably, the NYC Fair Chance Act was passed just weeks after the passage of legislation that bars certain New York City employers from requesting or using current or prospective employees' consumer credit histories for employment purposes. New York City employers should review the Act's requirements and revise their employment applications and criminal background check policies accordingly to ensure compliance with the Act.