The New York City Fair Chance Act (FCA) was passed by the New York City Council on June 10, 2015. A copy can be found here. The FCA amends the New York City Human Rights Law (NYCHRL) prohibiting employers with 4 or more employees from making inquiries into an applicant’s criminal history unless a conditional offer of employment has been made. As it has been more commonly come to be known as, “ban the box” refers to the box routinely found on job applications where applicants indicate whether they have been convicted of a felony or other type of crimes.
The FCA 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.” After a conditional offer of employment has been made, an employer may make inquiries regarding an applicant’s criminal background, if the employer:
- Makes the inquiry in writing;
- Utilizes Article 23(a) of the Corrections Law in performing an analysis of the applicant;
- Provides the applicant with a written copy of the analysis (including supporting documents); and
- Provides the applicant with at least 3 business days to respond (during which time the position must remain open).
A similar law, passed in 2011, already constrains New York City government employers from making criminal background inquiries.
The FCA, however, does not prohibit employers from performing criminal background checks for employment purposes as required by federal or state law. For example, the FCA specifically provides that police officers, peace officers and certain positions within the Department of Citywide Administrative Services are exempt. Moreover, the FCA does not prohibit employers in the financial services industry from complying with all Financial Industry Regulatory Authority (FINRA) rules which require that an applicant’s criminal history be considered when making hiring decisions.
The FCA will become effective 120 days after it is signed by Mayor Bill de Blasio.
The Bottom Line. Employers are encouraged to have experienced legal counsel review their job applications. New York City is just the latest municipality to enact legislation “banning the box.” Numerous other municipalities already have similar laws prohibiting criminal background checks until a conditional offer of employment has been extended.