New York Stops Criminal Background Checks

New-York-Ban-the-box

Effective October 27, 2015, New York City has joined other municipalities in New York State, and across the country, in prohibiting employers from obtaining criminal background information on job applicants before extending them a conditional offer of employment.  The Fair Chance Act (FCA) is New York City’s version of these so-called “ban-the-box” laws, which are intended to put applicants with criminal records in the same position as other candidates seeking employment at the start of the hiring process.  Through the FCA, New York City joins Rochester and Buffalo, New York, as well as ten states and dozens of other cities and counties that which have enacted similar legislation.

Covered Job Applicants

The prohibitions in the FCA generally apply to employers with four or more persons working in New York City.  However, there are several certain significant exceptions.  The prohibitions do not apply to any criminal history inquiries or adverse actions taken by an employer pursuant to any state, federal or local law that requires criminal background checks for employment purposes, or bars employment based on such criminal history.  They also do not apply to a job applicant seeking employment as a police or peace officer, or to law enforcement agencies, including police departments, fire departments, correctional departments and district attorney’s offices.

Prohibitions on Employers

The FCA makes it unlawful for an employer to issue any solicitation, advertisement or publication for employment, which expresses, directly or indirectly, any limitation or requirement based on a person’s arrests or criminal convictions.  Under this prohibition, advertising an employment position with requirements that an application have such things, as “no felonies” or a “clean record,” would be a violation.

The FCA also makes it unlawful to make any inquiry or statement related to the arrest or criminal conviction record of any prospective employee, until such time as the employer has extended a conditional offer of employment to the job applicant.  Under this prohibition, an employer cannot question an applicant at the pre-offer stage about their arrest or criminal conviction record, whether orally or in writing.  An employer also cannot conduct a search of the applicant’s criminal background information until after the conditional offer of employment has been extended.  The statements prohibited by the FCA include any oral or written statements made to the applicant for the purposes of obtaining the employee’s criminal background information regarding (i) an arrest record, (ii) a conviction record or (iii) a criminal background check.

Furthermore, job applicants need not respond to any such impermissible inquiries and cannot be disqualified from employment for not responding to them.

Criminal Background Searches After Extending a Conditional Offer of Employment

After extending a conditional offer of employment, an employer may inquire about the job applicant’s arrest or conviction record.  However, if the employer takes an adverse action against the applicant after conducting such a check, the employer must comply with the following conditions:

  • The employer must provide the job applicant with a written copy of the inquiry;
  • The employer must perform an analysis of the eight-factor test in Article 23-A of the New York Correction Law and provide the applicant with a copy of that analysis, including any documents that formed the basis for taking an adverse action against the applicant; and
  • The employer must allow the applicant a reasonable period of time to respond to the adverse action, but no less than three business days, during which time the position must continue to be held open for the applicant.

 Expansion of Anti-Discrimination Protection

The FCA also adds that employers may not take any “adverse action” against an employee to the current prohibition on denying employment to any person in violation of Article 23-A of the New York Correction Law. The FCA also adds a new prohibition on denying employment to any applicant or taking an adverse action against any employee by reason of an arrest or criminal accusation of such applicant or employee that would violate the New York State Human Rights Law, which prohibits employers from inquiring about arrests or criminal accusations that are no longer pending.

Recommendations for Employers

Employers must always be aware of local variances in employment laws, including differences in “ban-the-box” laws across New York State.  Employers that have operations in New York City should assess whether their hiring policies are compliant with the FCA.  Employers may need to revise their job applications to eliminate the “box” asking job applicants to affirm whether they have a criminal background.  Employers may also need to revise their interview and background check procedures to conform to the FCA.  Additionally, managers and employees involved in the hiring process should be trained on the new law.

However, it is important to understand that the FCA is not intended to be a complete prohibition on obtaining criminal background information.  It does not prohibit employers from running a criminal background check or asking for information about convictions that may be relevant to the job once the employer makes a conditional offer of employment to the applicant.  Employers are recommended to consult with employment law counsel to determine whether they are in compliance with the FCA.

Contributor:  Daniel C. Zamora, Attorney at Law  |  Weintraub Tobin