On April 16, 2015, the New York City Council passed a bill that amended the New York City Human Rights Law (NYCHRL) to prohibit New York City employers from requesting or using credit checks in employment decisions except under limited circumstances. The bill was signed into law by New York City Mayor Bill de Blasio on May 6, 2015 and will go into effect on September 3, 2015 (ref.May 1, 2015 Client Alert).
Following on the new credit check law, on June 10, 2015 the City Council passed a bill tightening the acceptable uses of criminal background checks in employment decisions. Mayor de Blasio is expected to sign this bill as well; the bill would go into effect 120 days after it is signed into law.
To read the full text of the law, please click here.
Summary of the bill
The bill, called the Fair Chance Act, prohibits public and private sector employers with four or more employees from inquiring about an applicant’s criminal record before making a conditional offer of employment. Notably, for purposes of this bill, independent contractors, who are not themselves employers, count toward the four-employee threshold.
Once the conditional offer of employment has been made, the employer may inquire about the applicant’s pending arrests or conviction record as long as, before any adverse employment action is taken based on that information, the employer:
- Provides a written copy of the inquiry to the applicant as dictated by the New York City Commission on Human Rights (the Commission);
- Performs an analysis of the applicant under existing New York State Correction Law to determine whether there are grounds to deny employment based on the particular criminal conviction, and provides a written copy of the analysis to the applicant in the manner dictated by the Commission; and
- After providing the written analysis, allows the applicant a reasonable time, of no less than three days, to respond, and holds the position open for the applicant during that time.
As is true under current New York law, employers still can decline to hire applicants where there is a direct relationship between the criminal offense and the position sought, or where hiring the applicant would involve unreasonable risk to the safety of others. However, once the Fair Chance Act takes effect, employers must make the conditional offer of employment before inquiring as to criminal background, and then follow the dictated procedure before rescinding the offer.
New York state law continues to prohibit inquiry into or denial of employment based on arrests that are not currently pending which did not lead to convictions, youthful offender adjudications, or sealed convictions.
The bill does not apply to applicants for employment with a police department, the fire department, the department of corrections, and district attorneys’ offices, among other related positions.
Criminal background checks required by state, federal, or local law, or by self-regulatory agencies are also exempted from this bill.
Like the credit check bill, this bill is an amendment to the NYCHRL, and therefore, the rights and remedies for employment discrimination under the NYCHRL will be available under the new law. Therefore, individuals will be able to file complaints with the New York City Commission on Human Rights or file an action in court directly. Remedies that may be recoverable in such actions could include back pay, compensatory and punitive damages, attorneys’ fees and litigation costs, and reinstatement, front pay, or other equitable relief.
Employers with New York City employees and applicants should review their application forms and remove questions regarding criminal history. Employers may also wish to consider training human resources and other personnel who conduct interviews of applicants to avoid asking questions relating to criminal background information.