New York City passed a local law to amend its administrative code to prohibit employment discrimination based on one’s arrest record or criminal conviction.  Employers and background screeners take note.  The legislation, the Fair Chance Act, passed City Council earlier this month (6/10/15) and Mayor Bill de Blasio is expected to sign it.  Note too that the law impacts licensing and permits, but for purposes of this blog posting I will only review the sections related to employment screening.  Also, note that it is being dubbed a Ban the Box law, but it is clearly so much more than that as a pure Ban the Box law would simply remove the question about one’s criminal history from the job application.

Who does the law affect and what does it do?

  • It impacts private employers in New York City;
  • It makes it an unlawful discriminatory practice for any “employer, employment agency or agent thereof” (background screeners take note of the agent language) to deny employment or take adverse action against any employee due to criminal convictions;
  • Employers still need to abide, as they do in New York in general, by Article 23-A of the New York Correction Law which essentially requires an employer to tie the criminal history to the particular position through an individualized assessment;
  • It makes it an unlawful discriminatory practice potentially to deny employment or act adversely with respect to an employee based on an arrest;
  • It includes Ban the Box language in that an employer cannot make any inquiry, including on any form of application, regarding arrest or criminal accusation which does not lead to a conviction;
  • Requires a conditional offer of employment before any inquiry or statement related to a pending arrest or criminal conviction record can be made and requires that if an adverse employment action is going to be taken, the individual must be provided a written analysis for the adverse action akin to an individualized assessment (again, reference Article 23-A of New York’s Correction Law for this too);
  • It places restrictions on job advertisements which express limitations on a person’s arrest or criminal history as a condition or bar to employment; and,
  • There are limited exceptions, tied to federal, state or local laws requiring a criminal background check or barring employment based on criminal history.  It also does not apply to law enforcement job applicants.

This is a law that employers should take note given its breadth.  It will take effect 120 after enactment, meaning it will likely go into effect later this year.  Also, if as an employer or background screener you are not already entirely freaked out (not a legal term) by this, note that there are also restrictions on an employer’s use of credit for employment screening purposes in New York City under the Stop Credit Discrimination in Employment Act.