New York City Council Passes Ban the Box

Angela Preston

New York City

The Fair Chance Act, New York City’s take on Ban the Box, was passed by New York City Council last Wednesday. The bill had overwhelming support; Mayor deBlasio is expected to sign the bill, which will take effect 120 days after its enactment.

If you’re new to ban the box, the “box” refers to the check box on job applications asking applicants if they have a criminal history. The idea is to allow ex-offenders a chance to get past the application stage and increase their job opportunities by delaying a criminal background check or inquiry until later in the hiring process. The full text of the bill can be found here. In a press release issued by the council, supporters clarified that “nothing in the bill would require an employer to hire anyone despite criminal history.”  Like many other ban the box laws, the New York version goes beyond the application check box, and adds some additional restrictions on the use of criminal information in the hiring process that employers need to know. Here is a breakdown:

New Hiring Requirements 

The bill will make it a discriminatory practice to ask about criminal history until after a conditional offer of employment. When the ordinance takes effect, an employer will be able to rescind an offer after a criminal background check, but not before the employer gives an explanation and engages in “an interactive discussion, considering the employer’s requirements and the applicant’s evidence of good conduct.” The law also requires the employer to provide the applicant with a written copy of the inquiry, perform an analysis of the response, and provide the applicant with a written copy of the analysis before taking adverse action. The bill differs from the standard notice requirements under the Fair Credit Reporting Act, which does not require an analysis or written notice of that analysis. It also appears to incorporate some of the individualized assessment elements described in the EEOC’s guidance on criminal records.

The law applies to businesses with at least four employees. The bill also expressly prohibits the use of credit in employment.

The bottom line: If you are an employer in New York, take careful note of the requirements under this bill and make sure your process is compliant. Contact your counsel for legal advice and make sure you are ready when the bill takes effect.

Selected Bill Text

Some of the relevant ban the box language from the bill is below:

Arrest and conviction records; employer inquiries. (a) In addition to the restrictions in subdivision 11 of this section, it shall be an unlawful discriminatory practice for any employer, employment agency or agent thereof to:

(1) 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

(2) Make any inquiry or statement related to the pending arrest or criminal conviction record of any person who is in the process of applying for employment with such employer or agent thereof until after such employer or agent thereof has extended a conditional offer of employment to the applicant. For purposes of this subdivision, with respect to an applicant for temporary employment at a temporary help firm as such term is defined by subdivision five of section 916 of article 31 of 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.  For purposes of this subdivision, “any inquiry” means any question communicated to an applicant in writing or otherwise, or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information. For purposes of this subdivision, “any statement” means a statement communicated in writing or otherwise to the applicant for purposes of obtaining an applicant’s criminal background information regarding: (i) an arrest record; (ii) a conviction record; or (iii) a criminal background check.

(b) After extending an applicant a conditional offer of employment, an employer, employment agency or agent thereof may inquire about the applicant’s arrest or conviction record if before taking any adverse employment action based on such inquiry, the employer, employment agency or agent thereof:

(i) provides a written copy of the inquiry to the applicant in a manner to be determined by the commission;

(ii) performs an analysis of the applicant under article twenty-three-a of the correction law and provides 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 an adverse action based on such analysis and the employer’s or employment agency’s reasons for taking any adverse action against such applicant; and

(iii) after giving the applicant the inquiry and analysis in writing pursuant to subparagraphs (i) and (ii) of this paragraph, allows the applicant a reasonable time to respond, which shall be no less than three business days and during this time, holds the position open for the applicant.

(c) Nothing in this subdivision shall prevent an employer, employment agency or agent thereof from taking adverse action against any employee or denying employment to any applicant for reasons other than such employee or applicant’s arrest or criminal conviction record.

Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
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