Joining San Francisco and other jurisdictions, the New York City Council recently passed legislation restricting when employers may inquire into applicants’ criminal histories and how employers may use such information in making employment decisions. Prior to passage, the New York City Human Rights Law already provided some restrictions on use of an applicant’s or employee’s criminal history in making employment decisions, including the requirement that employers apply a multi-factor analysis to determine whether a sufficient relationship between the offense and the position existed to warrant the adverse action.
The recent ordinance goes further. First, it prohibits employers with four or more employees from inquiring—verbally, in writing, or through searching public information—about an applicant’s pending arrest or criminal conviction record until after a conditional employment offer has been made. Second, employers may not state in job advertisements that an applicant’s arrest or conviction history will impact employment. Third, before taking any adverse action due to criminal history, employers must provide the applicant: a copy of the inquiry, a written analysis with supporting documentation setting forth the reasoning for the action, and at least three business days (while holding the position open) to respond to the analysis. The New York City Commission on Human Rights is responsible for issuing a form or guidance for the notice and written analysis required by the ordinance.
Persons aggrieved under the ordinance have a private right of action with remedies to include attorneys’ fees. The ordinance includes limited exceptions for law-enforcement jobs and for searches required by law as part of the application process. Mayor Bill de Blasio, who has expressed support for the ordinance, is expected to sign it shortly, and the ordinance will take effect 120 days thereafter.