Have you ever been convicted of a misdemeanor or felony that was not dismissed, expunged, or sealed? New York City employers, if you ask that question on your employment application or some version of that question, then remove it. If you search the internet or other databases to learn about your applicants’ criminal history, then stop it. Or at least do so by the fall when the Fair Chance Act, New York City’s “ban the box” law, which Mayor de Blasio is expected to sign, goes into effect. New York City now joins a growing list of jurisdictions to ban criminal conviction inquiries during the screening process. The key difference here is that unlike most jurisdictions, New York City extends its prohibitions to private employers. We briefly summarize the law below.
First, a little background
New York State and City law already generally make it illegal ask an applicant or employee about his or her criminal history except in a limited way. Further, under New York State Corrections Law Article 23-A, employers cannot reject an applicant or take action against an existing employee because of their criminal history unless there is a “direct relationship” between the prior arrest or conviction and the job, or where there is an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
The “direct relationship” test is notoriously difficult to satisfy because it requires the employer to first consider nine factors, and if the employer still proceeds with the rejection or adverse action, it then has to inform the applicant or employee of the specific reason(s) for the rejection or action. A failure to comply with these laws results in a human rights law violation under the City (Administrative Code §8-107) and/or State (Executive Law §296) Human Rights Laws.
Mayor Bloomberg also previously issued Executive Order 151 in 2011 which, subject to certain exceptions, bans criminal conviction inquires by New York City’s public agencies until after the applicant’s first interview and it limits those inquiries to felony convictions, unsealed misdemeanor convictions and pending charges.
In both cases, the State and City laws and Executive Order do not prohibit all inquiries; just what an employer or public agency may ask, when they may ask about it, and what they may do in response.
Enter the Fair Chance Act
Building on these laws, and upon the recent momentum with its passage of the Stop Credit Discrimination in Employment Act, which prohibits most employers from making employment decisions based on an employee or applicant’s consumer credit history, the Fair Chance Act amends the existing City human rights law by prohibiting employers generally from asking a job applicant about his or her criminal history before giving the applicant a conditional offer of employment, and by requiring them to follow certain procedures if they make an inquiry after the conditional offer. More specifically, the law does the following:
- Prohibits employers and employment agencies from “expressing” in a job advertisement that a person’s arrest or criminal conviction record may disqualify an applicant.
- Prohibits employers and employment agencies from inquiring about arrests or convictions of a job applicant until the employer or employment agency makes a conditional job offer.
Note: a closer reading of the law reveals that employers are prohibited from asking about “pending” arrests. This is significant. Article 23-A and Executive Order 151 carve out pending arrests from their prohibitions, but this law doesn't. There is one reference in the committee hearing transcript confirming that the “pending” language was intended.
- Conditional offers made by temp agencies means that the agency offers to place the applicant in its general candidate pool.
- Inquires don’t just mean asking a question on an employment application. It also means during an interview or in some other manner. And it goes further than that: it also means any searches an employer or agency makes of publicly available records or consumer reports that the employer or agency conducts for the purpose of obtaining an applicant’s criminal background information.
Note: This is also significant. It means that employers must exercise caution before jumping online to learn more about their applicants before making a conditional job offer.
- The prohibition also bans statements that an employer may obtain for purposes of obtaining the applicant or employees arrest or conviction record or a criminal background check.
- After the conditional job offer, employers and employment agencies may ask about arrest and convictions records. However, they cannot reject an applicant or take an adverse action based on criminal history unless they first:
- provide the applicant with a “written copy of the inquiry” – in a form developed by the New York City Commission on Human Rights;
- perform an Article 23-A analysis and provide a copy of that analysis to the applicant on a form that the New York City Human Rights Commission will also develop. The analysis must include the supporting documents that formed the basis for the adverse action based and the reason or reasons the employer or agency withdrew the offer; and
- provide the applicant with a reasonable time to respond, which shall run no less than three days and hold the position open during that time.
Note: although the law doesn’t go into effect until the fall, it’s unclear whether the Commission will have sample forms or other guidance ready on time - but we will watch closely. Further, the hearing transcript on the law notes that this 3-day waiting period serves to provide the applicant or employee with “time to address incorrect or negative reporting[, or], to provide their employer with proof of rehabilitation,” but the actual law does not require the employer to reverse course even with this information in hand.
- There are exceptions to the general rule. For example, these prohibitions do not apply where a federal, state or local law or where a rule or regulation of a self-regulatory organization requires the employer to perform a criminal background check or bars employment based on criminal history. They also don’t apply to certain public employment positions, such as police officers and firefighters.
- Separately, the law also prohibits the denial credit, licenses, registrations or permits based on criminal history or taking other adverse actions against license, registration or permit holders based on criminal history.
- Employers and applicants can file a lawsuit and recover all available damages under the City Human Rights Law including punitive damages and attorneys’ fees.
This law goes further than Article 23-A and the City Executive Order by curbing a wider array of inquiries, making employers wait longer before asking about criminal conviction and arrest history and making it harder overall for employers to act on that information.
And so there you have it -- yet another employment law from the New York City Council. City employers are once again forced to revisit their screening and hiring practices to guard against a new form of discrimination. And the City Council remains very active these days. Its Committee on Civil Rights introduced a number of mostly employee-friendly bills just last week. We will continue to monitor them.