New York City Passes “Ban the Box” Legislation

Megan J. Muoio, July 2, 2015

On June 10, 2015, the New York City Council passed the Fair Chance Act, New York City’s version of “ban the box” legislation which eliminates the use of check boxes on job applications that ask about past convictions. The Act addresses the issue of the use of criminal records in the hiring process, which has come under increasing scrutiny because of the concern that applicants who are asked to disclose their criminal background are excluded from being considered for employment at the application stage of the job process. The bill’s lead sponsor, City Council Member Jumaane Williams hailed the Fair Chance Act as employment legislation that was also a criminal justice bill because it would raise the near-permanent barrier against employment for individuals with criminal records and permit those with criminal histories to reenter the workforce.

The Equal Employment Opportunity Commission provided guidance on the issue in 2012. The guidance requires that employers demonstrate that if they make hiring decisions based on conviction records, those decision must be directly job-related and that all applicants are individually assessed with respect to the position for which they are applying. New Jersey, as well as five other states, Washington, D.C., and greater than 100 other cities and municipalities have already passed “ban the box” legislation.

Mayor Bill de Blasio signed the Fair Chance Act on June 29, 2015. The legislation, which applies to all New York City employers with four or more employees, goes into effect on October 27, 2015. Under the Act, employers cannot state that employment is based on an applicant’s arrest or criminal conviction record and cannot advertise that an applicant’s arrest or criminal conviction history will limit the applicant’s eligibility for employment. Generally, employers cannot ask about criminal background information prior to hiring, but are also prohibited from conducting searches of publicly available records or conducting Fair Credit Reporting Act background searches in order to ascertain arrest and conviction information about applicants.

There are several narrow exceptions to the Fair Chance Act. Employers may make criminal background inquiries of applicants for positions in law enforcement; positions for which state, federal, or local law requires a background check be performed; or positions that are susceptible to bribery or that involve safeguarding people vulnerable to abuse (to be defined by the New York City Commission of Citywide Administrative Services).

Under New York City’s law, employers are permitted to make inquiries about an applicant’s criminal background before hiring only after making a conditional offer of employment and if the employer provides detailed information about the background inquiry. In that situation, the employer can consider background information only if it establishes that there is a direct relationship between the criminal offenses and the specific employment sought, and that there is an unreasonable risk to specific members of the general public, their safety, welfare, or property. If the employer makes an employment decision based on the applicant’s criminal background information, the employer must provide the applicant with an analysis of the eight factors set out in Article 23-A of the New York City Correction Law, which prohibits unfair discrimination against a previously-convicted person. The eight factors are:

• Public policy encouraging the employment of people with prior criminal convictions;
• The specific duties and responsibilities necessarily related to the job;
• The bearing, if any, the criminal offense would have on the person’s fitness or ability to perform the job duties and responsibilities;
• The time elapsed since the criminal offense;
• The age of the person at the time he committed the offense;
• The seriousness of the criminal offense;
• Information regarding rehabilitation and good conduct;
• The legitimate interest of the employer in protecting property, safety and welfare.

If the employer conducts this analysis, withdraws the conditional offer, and provides the written analysis, the employer must then keep the position open for three days until the applicant responds. In order to enforce violations of the Fair Chance Act, individuals will have a private right of action or may seek enforcement through the New York City Commission on Human Rights.

New York City employers should review their hiring procedures from start to finish to ensure compliance with the Fair Chance Act. Employers should review the Act to determine whether any of the positions within their company fall into the exceptions. References to criminal background information as a factor in employment eligibility should be removed from job listings. Applications will also have to be revised to eliminate all questions and check boxes regarding applicants’ criminal background. Hiring managers, recruiters, and human resources personnel should be trained to revise their interviewing procedures to ensure that criminal background information is not a subject of inquiry. They should also should be aware of the process for making a conditional offer and analyzing whether it is proper to request a criminal background check, and on how to make proper employment determinations based on the terms of the Fair Chance Act. Finally, they should be trained on how to provide proper analysis under Article 23-A and withdraw conditional offers of employment properly under the Act so that the employer is not subject to litigation.