New York City has adopted an ordinance restricting when employer inquiries about applicants’ criminal histories may be made during the application process and imposing significant obligations on employers who intend to take action based on such information.
The Fair Chance Act ordinance will become effective on September 27, 2015, 90 days after Mayor Bill de Blasio signed the bill on June 29.
Similar to other ban-the-box laws, the ordinance generally prohibits an employer with at least four employees from making an inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been extended. Limited exceptions are provided.
Under the ordinance’s definition of inquiry, employers are prohibited not only from asking an applicant prohibited questions — verbally or in writing — but also are prohibited from searching publicly available sources to obtain information about an applicant’s criminal history.
The main exception applies when an employer, under applicable federal, state, or local law, is required to conduct criminal background checks for employment purposes or to bar employment in a particular position based on criminal history.
Other exceptions remove prospective police officers, peace officers, and law enforcement agency and other law-enforcement-related employees from coverage. Therefore, these are unlikely to affect positions and employers in the private sector.
Employers who make inquiries into an applicant’s criminal history after a conditional offer of employment has been extended and determine that the information warrants an adverse employment action must follow a rigorous process. Specifically, employers must:
- Provide the applicant with a “written copy of the inquiry” which complies with the City’s Commission on Human Rights’s required (but not-yet-issued) format;
- Perform the analysis required by Article 23(a) of the New York Correction Law, “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”;
- Provide the applicant with a copy of its analysis, also in a manner which complies with the Commission’s required format, which includes supporting documents and an explanation of the employer’s decision to take an adverse employment action; and
- Allow the applicant at least three business days to respond to the written analysis by holding the position open during this time.
Of course, for employers who conduct background checks through consumer reporting agencies, if such information is obtained from a background check, the above process must be integrated with the Fair Credit Reporting Act (FCRA) pre-adverse action requirements.
All covered New York City employers must develop measures to ensure compliance with the Fair Chance Act ordinance.