Jul 13, 2015 General Employment Issues

Mayor de Blasio Signs “Ban the Box” Law Prohibiting Pre-Offer Inquiries By New York City Employers Regarding Applicants’ Criminal Histories

On June 29, 2015, Mayor Bill de Blasio signed into law the Fair Chance Act, a new law which prohibits, among other things, pre-offer inquiries by New York City employers regarding applicants’ criminal histories.  This new law will take effect on October 27, 2015. 

Laws such as the Fair Chance Act are frequently referred to as “ban the box” laws because they require, among other things, that employers remove questions on their employment applications asking applicants to check a box if they have ever been convicted of a crime.  In recent years, a growing number of jurisdictions throughout the United States have passed various versions of ban-the-box laws (e.g., Hawaii, Massachusetts, New Jersey, Washington, D.C., Buffalo, Rochester, and Philadelphia).

1.  Key Restrictions in This New Law.

This new law amends the New York City Human Rights Law (“NYCHRL”) and makes it an unlawful discriminatory practice for covered New York City employers to, among other things:

(i)  Declare, print or circulate or cause to be declared, printed, or circulated, any solicitation, advertisement, or publication, which expresses, directly or indirectly, any limitation, or specification in employment based on a person’s arrest or criminal conviction; or

(ii)  Make any inquiry or statement relating to an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment is extended to the applicant.[1]  (Inquiries regarding arrests and criminal accusations that are no longer pending are already prohibited under existing law).  This restriction extends to (a) any question communicated to an applicant in writing or otherwise (e.g., an employment application question); (b) any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information (e.g., a criminal background check); and (c) any statement communicated to the applicant, in writing or otherwise, for the purpose of obtaining an applicant’s criminal background information regarding an arrest record, a conviction record, or a criminal background check.[2]

The law also provides that an applicant shall not be required to respond to any inquiry or statement that violates the restrictions in the law discussed above and any refusal to respond to such inquiry or statement shall not disqualify the applicant from the prospective employment.

2.  Adverse Action Notice Obligations Imposed by the New Law.

If an employer chooses to inquire about an applicant’s convictions and pending arrests after extending an applicant a conditional offer of employment, the employer must now take the following steps before taking any adverse employment action (e.g., rescinding a conditional offer of employment) based on the results of the inquiry:

(i)  provide a written copy of the inquiry to the applicant in a manner to be determined by the New York City Commission on Human Rights (“Commission”);

(ii)  perform an analysis of the applicant in accordance with Article 23-A of the New York Correction Law, and provide a written copy of such analysis to the applicant in a manner to be determined by the Commission (which shall include, but not be limited to, supporting documents that formed the basis for the adverse action based on such analysis and the employer’s reasons for taking any adverse action against such applicant); and

(iii)  after giving the applicant the inquiry and analysis in writing (described above), allow the applicant a reasonable time to respond (i.e., no less than three business days) and during this time, hold the position open for the applicant.

With respect to the Article 23-A analysis referenced in (ii) above, it is likely that the Commission will provide further guidance regarding the specific analysis that must be conducted.  However, at a minimum, Article 23-A requires that an employer shall not deny employment (nor take any adverse action) based on an individual’s conviction record unless there is a determination that:  (1) there is a direct relationship between one or more of the previous criminal offenses and the employment sought (or held by the individual); or (2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.  In making this determination, Article 23-A requires that the following factors be considered:

•  New York’s public policy, which is to encourage the employment of persons previously convicted of one or more criminal offenses.

•  The specific duties and responsibilities necessarily related to the employment sought or held by the person.

•  The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more of such duties or •  responsibilities.

•  The time which has elapsed since the occurrence of the criminal offense or offenses.

•  The age of the person at the time of occurrence of the criminal offense or offenses.

•  The seriousness of the offense or offenses.

•  Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.[3]

•  The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.

Please note that, in addition to the adverse action process described above, if an employer plans to take an adverse action based on criminal history (or other) information that it obtained through a consumer or investigative consumer report, the employer must also comply with separate pre-adverse action and adverse action fair credit reporting act notice requirements.

3.  Exceptions.

Notably, the law contains exceptions for actions taken by an employer pursuant to any state, federal or local law that requires criminal background checks for employment purposes or that bars employment based on criminal history (including rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934 (e.g., FINRA)). 

The law also contains certain exceptions pertaining to police officers or peace officers, certain law enforcement agencies (as described in the law), and certain other government positions listed in the law.  

4.  Enforcement.

Individuals claiming violations of this new law may file a claim against private employers with the Commission or a lawsuit in court, and seek relief available to victims of discrimination under the NYCHRL.  Such relief may include compensatory damages (including backpay and front pay), punitive damages and attorneys’ fees (depending on the facts and circumstances of the case).  (The law also addresses separately the enforcement of the law against public agencies).

5.  Next Steps.

In light of this new law, New York City employers should: (i) review any hiring or other employment materials, policies or practices that involve a request for, or review or consideration of, an individual’s arrest and conviction history; and (ii) make any necessary changes to comply with this new law by October 27, 2015.  For example:

•  Employers should review any employment applications, other materials provided to applicants prior to making a conditional offer of employment, and any interview guidelines and revise these materials to ensure that they do not contain any prohibited inquiries or statements regarding arrests and convictions.  A similar review should also be performed regarding any job postings, advertisements, and solicitations. 

•  Employers should conduct training for individuals responsible for hiring and conducting interviews, to ensure they understand the restrictions on pre-employment criminal history inquiries set forth in the law.

•  Employers may need to amend their background check procedures to ensure that they do not request background check authorizations or conduct background checks (including informal public record searches) until after a conditional offer of employment is extended.

•  Employers should implement procedures to comply with the adverse action requirements in the new law (bearing in mind that these procedures are in addition to the fair credit reporting act pre-adverse action and adverse action requirements).

Please do not hesitate to contact any of our attorneys if you have any questions or would like assistance in reviewing or revising your company’s materials and pre-employment procedures to comply with this new law.

[1] The new law also: (a) incorporates into the NYCHRL certain existing protections against discrimination based on non-pending arrest records and criminal accusations, youthful offender adjudications, and certain sealed records, which are set forth in the New York State Human Rights Law; and (b) clarifies that the protections against discrimination based on arrest and conviction records apply both to the denial of employment and any adverse employment actions.    

[2] These restrictions and the obligations described below also apply to employment agencies.  With respect to an applicant for temporary employment at a temporary help firm (as defined in the New York Labor Law) an offer to be placed in the temporary help firm’s general candidate pool shall constitute a conditional offer of employment.

[3] Article 23-A also requires that an employer give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified in the certificate.