New Restrictions on Criminal Background Checks by Employers in NYC

On June 10, 2015 , the New York City Council approved a bill, the Fair Chance Act  (“the Act”), that will regulate how and when public and private employers with more than 4 employees may conduct criminal background checks of job applicants.  With the passing of the Act, New York City joins more than ten states and over sixty cities and counties in the US in passing “ban the box” legislation.  This refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application.
The new law prohibits employers in New York City from conducting criminal background checks until after they have extended  “a conditional offer of employment” to the applicant.  A criminal background check is defined as “any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.”  This ensures that applicants are considered based upon skills, qualifications and experience before an employer considers a conviction history.

The law also requires that certain disclosures are made to the applicant before a conditional offer of employment is withdrawn based on the results of a criminal background check. Specifically, before an employer can take an adverse employment action, the employer must provide the applicant with a written explanation for the action that includes a copy of the analysis performed to determine if the applicant should be disqualified from employment, along with any supporting documents. The applicant must then be given at least three business days to respond to the revocation of the job offer, during which time the position must be held open.

The law also prohibits employers from circulating or even printing an advertisement or other posting that expresses any limitation on employment based on a person’s arrest or criminal conviction.

The law’s restrictions do not apply to certain jobs that require criminal background checks under state, federal, or local laws that bar employees with criminal histories from serving.  For example,  banking institutions are subject to the Federal Deposit Insurance Act,  and therefore are prohibited from employing individuals convicted of certain offenses without FDIC consent and are required to inquire into a job applicant’s conviction record.  Other exceptions include applications to become police officers or peace officers and other public employment positions that involve law enforcement, where employees are susceptible to bribery or other corruption, or entail the provision of services to or safeguarding individuals vulnerable to abuse.

The Act will be enforced in the same manner as New York City’s existing laws prohibiting employment discrimination.  An individual can file a complaint with the NYC Commission on Human Rights or start an action in the court system.

Employers with employees across New York State (in areas where “ban the box” legislation has not been passed) that have a presence in New York City, must modify their hiring practices for prospective employees so that they remain in compliance with the new law on criminal history inquiry and criminal background check processes.

New York City Mayor Bill de Blasio signed the bill into law on June 29, 2015.  It will officially take effect on October 27, 2015.

~Submitted by L Levine and M Zwerling

Categories: Employment Law