On Oct. 27, 2015, the new NYC Fair Chance Act ( “FCA”), recently signed into law by Mayor Bill de Blasio, takes effect. The FCA prohibits most New York City employers from making inquiries into an applicant’s criminal conviction background until after a conditional offer of employment has been extended by the employer to the applicant (the so-called “ban the box” rule). The FCA also prohibits reference to the impact that a criminal conviction may have on an applicant’s chances of employment in any publication advertising the position. NYC employers need to revise application materials and practices by October 27 to ensure compliance with the law.
Existing state law already imposes notice requirements in the event that an applicant’s background disqualifies him or her for the position sought. Under Article 23-A of the New York State Correction Law (which continues to govern the manner in which all employers in New York State may conduct criminal background checks), employers are required to provide, upon request, a written statement to any applicant who was denied employment setting forth the reasons for the denial within thirty days of such a request. Article 23-A of the Correction Law also includes a number of factors for employers to consider when determining whether a criminal conviction disqualifies an applicant from a given position. These factors include the nature of the crime, the amount of time that has passed since the conviction, and the age of the person at the time of the criminal offense. The FCA goes further and requires that NYC employers provide the applicant a written statement evaluating these factors, as well as a written copy of the inquiry into the applicant’s criminal conviction background, before taking the adverse employment action, and without receiving a request from the applicant. Additionally, NYC employers must hold the position open for a minimum of three days to give a disqualified applicant an opportunity to respond to the employer’s conclusions.
The FCA exempts from its coverage employers required to conduct such inquiries by local, state or federal law or statute, or by the rules of a financial self-regulatory organization (such as the SEC or FINRA). Also excluded are employers hiring for positions as police officers or positions within law enforcement agencies (including, among others, police departments, fire departments and the department of corrections).
Scope of Prohibited Inquiry
The FCA prohibits employers from making “any inquiry or statement related to the pending arrest or criminal conviction record” of an applicant until after a conditional offer of employment is extended. This prohibits inquiries that an employer may make of the applicant directly, as well as any inquiries that an employer may make about that applicant to a third party (such as a background check service).
An aggrieved individual may file a complaint of discrimination with the New York City Commission on Human Rights (within a one-year limitations period) or file an action directly in court (within a three-year limitations period).
New York City employers should conduct an internal audit to evaluate the changes to their hiring and retention practices that the FCA may occasion. Written application forms should be revised to remove any pre-employment inquiry into applicants’ criminal conviction history. Hiring managers should be trained not to make such inquiries during the interview process, as well as how to respond to an applicant’s voluntary self-disclosure of his or her criminal conviction history.
Related Applicable Laws
Earlier this year, New York City joined a growing number of jurisdictions that limit employers’ use of applicant or employee credit information for employment purposes. With certain very limited exceptions, the New York City Human Rights Law prohibits employers from treating individuals less favorably than others on the basis of their credit history (more information about that law is available here and here). The FCA adds an additional layer of restrictions making it an “unlawful discriminatory practice” for New York City employers to consider an individual’s criminal conviction history in making employment decisions (subject to the limited exceptions summarized above).