On June 10, 2015, the New York City Council passed the Fair Chance Act, which amends the New York City Human Rights Law to prohibit most employers in New York City from making any inquiries about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been made. The law is expected to be signed by Mayor Bill de Blasio, and will become effective 120 days after it is signed.
The law applies to employers with four or more employees, with some exceptions. For example, the law does not apply to 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 criminal history. The law also does not apply to actions taken by an employer with regard to an applicant for employment as a police officer or peace officer.
The law prohibits covered employers from making an inquiry or statement regarding the pending arrest or criminal conviction record of an applicant until after the employer has extended a conditional offer of employment. The term “inquiry” is defined to include not only questions communicated to an applicant in writing or otherwise, but also any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.
After a conditional offer of employment has been made, an employer may inquire about the applicant’s arrest or criminal conviction record, but may not take any adverse employment action based on the results of the inquiry unless the employer complies with the following requirements:
- The employer must 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;
- The employer must analyze the various factors under New York Correction Law Article 23-A to determine whether the applicant should be disqualified from employment;
- The employer must provide a copy of the analysis and any documents in support of the determination to the applicant in a manner to be determined by the New York City Commission on Human Rights; and
- The employer must give the applicant at least three business days to respond and must hold the position open for the applicant during the response period.
In addition to prohibiting pre-offer inquiries about an applicant’s arrest or criminal conviction record, the Fair Chance Act prohibits employers from publishing any job advertisements or solicitations stating either implicitly or explicitly that an applicant’s arrest or criminal conviction record will limit the applicant’s opportunity to be considered for the job.
In preparation for this new law, covered employers in New York City should take the following steps: (1) review their employment applications and remove any inquiries about an applicant’s arrest or conviction record; (2) review their procedures for conducting background checks to ensure that any criminal background checks are not conducted until after a conditional offer of employment has been made; and (3) make sure that all managers and supervisors who conduct interviews or who are otherwise involved in the hiring process are well-trained to avoid asking questions or making statements about an applicant’s arrest or criminal conviction record.
Editor’s Note: Our thanks to John Boyd, one of Bond’s Summer Law Clerks, who helped prepare this article.