Guidance Issued for New York City's Ban-the-Box Law

by Steven M. Berlin, Esq. and Karen Hart, Esq.

This is the first full year employers must comply with New York City's Fair Chance Act ("FCA"), better known as the City's "Ban-the-Box" law. Near the end of 2015, the City's Commission on Human Rights released Legal Enforcement Guidance for the sweeping FCA which restricts how and when employers in the City inquire about an applicant's criminal record.

Specifically, employers in the City, already limited by New York State Correction Law Article 23-A, denying employment purely because of an individual's arrest or criminal records, ("Article 23-A") now may not even request or consider an applicant's criminal record before extending a conditional offer of employment.

Therefore, in order to comply with the FCA, employers should remove any reference to arrest or conviction history when advertising for positions, eliminate inquires on applications regarding an applicant's criminal record, and instruct hiring personnel to refrain from asking applicants about criminal records or run background checks. If an employer questions an applicant about his or her criminal record at any time before making a job offer, the action is deemed to be a pro se violation of the FCA.

Once an employer extends a conditional offer of employment, the FCA permits the employer to inquire, either orally or in writing, about whether the applicant has a criminal conviction history or a pending criminal case; perform a criminal background check; and inquiry about the circumstances surrounding the criminal conviction.

It is important to note that certain arrests and convictions are excluded and should not be asked about or considered at any stage of the hiring or employment process. For instance, arrests that did not result in criminal convictions, convictions for petty offenses, and youthful offender adjudications are never to be inquired about or used in an employment decision.

Once criminal background information has been obtained, under the State's Article 23-A, an employer may only revoke the job offer if there is a direct relationship between the applicant's criminal record and the prospective position or if the employer can demonstrate that employing the applicant would create an unreasonable risk to the employer's property or to the safety of certain individuals or the general public.

The City's guidance provides that if the requirements of Article 23-A are satisfied and the employer wishes to revoke the offer, the employer must do the following: (1) complete a Fair Chance Notice explaining the employer's reason for withdrawing the offer of employment; (2) provide a copy of any inquiry and analysis of the applicant's conviction history conducted by the employer or a third-party vendor; and (3) give the applicant at least three business days to respond.

Note, employers required by law to conduct criminal background checks or to bar employment in a particular position based on criminal history are exempt from the requirements of the FCA. Furthermore, the FCA requirements do not apply if the employment sought is for a position as a police officer, peace officer, or is law-enforcement related.

However, in addition to the FCA and Article 23-A, when conducting and using criminal background checks, city employers must also comply with the federal Fair Credit Reporting Act and Title VII of the Civil Rights Act of 1964.

The City intends to vigorously enforce the FCA, including through the use of civil penalties. The Guidelines provide that penalties will be determined by the following factors: (1) severity of the violation; (2) additional, previous or contemporaneous violations; (3) employer's size, considering both the total number of employees and its revenue; and (4) whether or not the employer knew or should have known about the FCA.

All New York City employers who are not excluded from the FCA must implement mechanisms to ensure compliance with this law. Abrams, Gorelick, Friedman & Jacobson, LLP attorneys are available to answer questions and assist your organization in complying with the FCA and other workplace issues.