On June 10, 2015, the New York City Council passed the “Fair Chance Act” (Int. 318-A), known as “ban-the-box” legislation, prohibiting employers from discriminating against job applicants and current employees on the basis of arrest records or criminal convictions. The bill was signed into law by Mayor Bill de Blasio on June 29, 2015, and will become effective on October 27, 2015.

The Fair Chance Act alters provisions of the City’s Human Rights Law to prohibit employers from inquiring about a candidate’s criminal record until after they have made a conditional offer of employment. The new law, however, provides exemptions for public and private employers that are required by law to conduct criminal background checks and for several City agencies, including the Police Department, Fire Department, Department of Correction and Department of Probation. This law also applies to the issuance of a license, registration, permit and credit, thereby making it discriminatory to deny or act adversely upon an individual seeking such licenses, registration, permits or credit due to a criminal history.

Currently, Article 23-A of the New York State Correction Law protects applicants for licenses and employment and employees and licensees from discrimination on the basis of a criminal history. Essentially, it permits the denial or termination of a license or employment only if (1) there is a direct relationship between the criminal offense and the specific license or employment sought or held by the individual or (2) the issuance or continuation of the license or employment poses an unreasonable risk to property or the public.

As a result of the Fair Chance Act, if after learning of a criminal history, a New York City employer takes adverse action against the candidate or current employee based on that information, the employer is required to provide (1) a written copy of the criminal history inquiry, (2) an analysis pursuant to provisions of Article 23-A, and (3) supporting documentation explaining the reasons for the adverse action.

A New York City employer is prohibited from declaring, printing or circulating any employment information that creates employment limitations based on a person’s arrest record or criminal conviction. This includes any materials used for purposes of advertising an open position.

Applicants in New York City are permitted to refuse to respond to an inquiry that violates the provisions of this law, and such applicants are protected from disqualification due to such refusal. However, this does not apply to inquiries required pursuant to federal, state or local laws.