“Ban-the-Box” Guidance Issued in New York City
New York City’s “ban-the-box” law — entitled the Fair Chance Act (FCA) — became effective October 27, 2015 and amended the NYC Human Rights Law by making it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. The FCA also requires an employer that wishes to withdraw its offer give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.
On November 5, 2015, the NYC Commission on Human Rights issued Interpretative Enforcement Guidance on the FCA. This 13-page document confirms that the FCA goes considerably further than other “ban-the-box” laws (including those in New Jersey, Philadelphia, Rochester, and Buffalo) by not only imposing restrictions on when an employer can ask an applicant about criminal history, but also by creating new procedural requirements for employers who wish to use criminal history information once it is properly obtained. Key highlights of the new guidance include the following:
- Employers cannot make any inquiries or statements related to an applicant’s criminal history until after making a conditional employment offer. Likewise, employers cannot identify limitations for employment positions related to an individual’s criminal conviction history on solicitations, advertisements, employment applications, fliers, handouts, online postings, job fair materials, etc. Employers are also prohibited from soliciting background check disclosure and authorization forms or screens prior to making a conditional offer.
- Inadvertent disclosures of criminal record information by an applicant before an employer has made a conditional offer, do not, by themselves, create liability for an employer. However, the guidance cautions employers against using inadvertent disclosures as an opportunity to explore the applicant’s criminal record. Instead, the guidance suggests that an employer inform the applicant that, by law, the employer may consider an applicant’s record only if the employer decides to extend a job offer to the applicant. Similarly, if an applicant asks an employer during the interview if she or he will be subject to a criminal background check, the guidance notes that the employer may state that a criminal background check will be conducted only after a conditional offer of employment, but must then move the conversation to a different topic. Importantly, employers that make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the FCA.
- Once a conditional offer is made, employers may ask the applicant about his or her criminal history by using the following suggested language: “Have you ever been convicted of a misdemeanor or felony? Answer ‘NO’ if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.”
- If an employer hires an applicant after learning about her or his conviction history, the FCA does not require it to do anything more. However, an employer that wants to withdraw its conditional offer of employment must first consider each and every one of the factors outlined in Article 23-A of the New York Corrections Law. If, after doing so, an employer still wants to withdraw its conditional offer, it must follow the FCA’s “Fair Chance Process,” which requires the employer:
- Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history (e.g., copy of criminal background check report, printouts of the Internet search conducted by the employer, a written summary of the employer’s verbal conversations during which the criminal history was obtained, etc.);
- Share with the applicant a written copy of its Article 23-A analysis, which can be done by way of the NYCCHR’s new “Fair Chance Notice”; and
- Allow the applicant at least three business days from receipt of the inquiry and analysis to respond to the employer’s concerns.
- The FCA does not apply to:
- Employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions;
- Employers required by a self-regulatory organization to conduct criminal background checks of regulated persons;
- Police and peace officers, law enforcement agencies, and other exempted city agencies; and
- City positions designated by the Department of Citywide Administrative Services (DCAS) as exempt.
- Because an employer claiming an exemption under the FCA has the burden of showing that the position falls under one of the categories mentioned above, the guidance suggests employers claiming an exemption maintain an “exemption log” detailing which exemption was claimed, how the position fits into the specific exemption, a copy of the inquiry along with the name of the employee who made it, a copy of the employer’s Article 23-A analysis, and the final employment action taken based on the applicant’s criminal history. Great care should be taken in preparing these records, given the sensitive nature of the information involved.
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