NYC Updates “Ban the Box” Law to Detail Per Se Violations and Procedures Employers Must Follow to Conduct Employment-Related Criminal Background Checks
On August 5, 2017, important updates to New York City’s Fair Chance Act went into effect. The Fair Chance Act (FCA), which regulates criminal background checks on employees and license holders, is the City’s version of a growing trend of so-called municipal “Ban the Box” laws designed to prohibit employers and agencies from denying jobs and licenses to would-be employees because of a criminal conviction(s), especially when the conviction is not directly related to the persons’ ability to perform the job.
The Fair Chance Act itself took effect on October 27, 2015 (see MSK’s prior alert here). Since then, the New York Commission on Human Rights (Commission), the agency charged with enforcing the FCA, has published revisions that further clarify the law, provide guidelines for per se violations, and detail the analysis and process for legally withdrawing conditional offers of employment based on the results of a criminal background check. It is those revisions that took effect on August 5, 2017. (Click here for a copy of the rule).
As detailed below, MSK advises employers who advertise jobs in New York City to review their hiring practices to omit any references to criminal background checks and any authorizations to conduct criminal background checks, suspend the use of any criminal background searches, even of publicly available information before giving a conditional offer of employment, and familiarize themselves with the analysis and Fair Chance Process.
Under the revised Fair Chance Act, an employer may not inquire about an applicant’s criminal history or even request authorization or run a criminal background check until after making a conditional offer of employment.
Per-Se violations of the Act include (1) making an oral or written solicitation, advertisement, policy, or publication that expresses in any way, any limitation or specification in employment regarding criminal history (e.g., “no felonies,” “background check required,” or “must have clean record”); (2) using an employment application that requires applicants to give employers permission to run a background check or provide information regarding criminal history prior to a conditional offer; (3) making any statement or inquiry relating to an applicant’s pending arrest or criminal conviction before a conditional offer of employment is extended; (4) using boilerplate job applications in New York City, intended to be used across multiple jurisdictions, which request or refer to criminal history. (Note: this is a violation even if the application includes disclaimers or other language indicating that applicants should not answer specific questions if applying for a position in New York City.); (5) failure to provide the applicant with a written copy of an inquiry an employer conducted into the applicant’s criminal history or a written copy of the employer’s Article 23-A analysis (described below); and (6) failure to hold the position open for at least three business days from the date of an applicant’s receipt of both the inquiry and analysis. Accordingly, it is imperative that employers immediately review their job applications and advertisements, as well as their hiring practices to ensure they are not committing a per se violation.
Procedure for Withdrawing a Conditional Offer of Employment or Taking an Adverse Employment Action
Once a conditional offer of employment is made, it may only be revoked on the basis of a felony, misdemeanor or unsealed violation conviction. However, the employer must conduct an analysis and engage in the Fair Chance Process before revoking a conditional offer of employment. Both are described below.
After making a conditional offer, an employer may either (1) ask orally or in writing whether an applicant has a criminal conviction history; (2) run a background check, or after receiving the applicant’s permissions and providing notice, use a consumer reporting agency to do so; and (3) once an employer knows about an applicant’s convictions history, ask them about the circumstances that led to the conviction and gather information relevant to the Article 23-A factors. If an employer does not wish to withdraw the conditional offer, the employer does not need to engage in the Article 23-A analysis.
Article 23-A Analysis Factors
- New York public policy encourages the licensure and employment of people with criminal records
- The specific duties and responsibilities necessarily relate to the prospective job
- The bearing, if any, of the conviction history on the applicant’s or employee’s fitness or ability to perform one or more of the job’s duties or responsibilities.
- The time that has elapsed since the occurrence of the criminal offense that led to the applicant or employee’s criminal conviction, not the time since arrest or conviction;
- The age of the applicant or employee when the criminal offense that led to their conviction occurred
- The seriousness of the applicant’s or employee’s conviction
- Any information produced by the applicant or employee or produced on the applicant’s or employee’s behalf, regarding their rehabilitation and good conduct;
- The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
Direct Relationship and Unreasonable Risk Exceptions
After evaluating the factors, an employer must determine whether (1) there is a “direct relationship” between the applicant’s or employee’s conviction history and the prospective or current job, or (2) employing or continuing to employ the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. To claim the “direct relationship” exemption, an employer must first draw some connection between the nature of the conduct that led to the conviction(s) and the position, then the employer must evaluate the Article 23-A factors to determine whether the concerns presented by the relationship have been mitigated. To claim the “unreasonable risk exception” an employer must consider and apply the Article 23-A factors to determine if an unreasonable risk exists. If, after the analysis, an employer cannot determine that either the direct relations or unreasonable risk exemptions apply, then the employer may not revoke the conditional offer or take any adverse employment action.
Fair Chance Process
If, after the employer determines that either the direct relations(hip) or unreasonable risk exemption applies, the employer wishes to revoke the conditional offer or take an adverse employment action, the employer must first (1) provide a written copy of any inquiry made to collect information about criminal history to the applicant and a complete and accurate copy of each and every piece of information relied on to determine the applicant had a conviction history, including a written summary of any oral information and whether that oral information came from the applicant, (2) provide a written copy of the Article 23-A analysis to the applicant on a Fair Chance Notice form provided by the Commission (available at www.nyc.gov/fairchancenyc) or an employer-created form that includes the material substance of the Commission form, (3) inform the applicant that they will be given a reasonable time (not less than 3 business days) to respond to the employer’s concerns, and (4) consider whether any additional information provided by the applicant changes the Article 23-A analysis.
If, after the above, the employer still seeks to withdraw the conditional offer, the employer must relay that decision to the applicant in writing. However, the employer may consider the applicant or employee for alternative positions.
Q: What Are The Exemptions From The Fair Chance Act?
A: The Act makes exempt any position where federal, state or local law requires criminal background checks or bars employment based on criminal history for particular types of convictions. The exemptions do not apply where criminal background checks are merely authorized or discretionary, but not mandated. However, if an applicant is denied employment for a position posted on the Department of Citywide Administrative Services (e.g., Police, Fire, Corrections, District Attorney’s Office, etc.) because of their criminal background, then they must receive a written copy of the Article 23-A analysis.
Q: What Should An Employer Do If They Inadvertently Learn About Applicant’s Criminal History Before Making A Conditional Offer?
A: Inadvertent discovery by the employer or unsolicited disclosure by an applicant of criminal history prior to a conditional offer of employment does not automatically create employer liability. Liability is created when an employer uses the discovery or disclosure to further explore an applicant’s criminal history before having made a conditional offer or uses the information in determining whether to make a conditional offer.
Q: What If An Employee Fails To Disclose Their Conviction History After Receiving A Conditional Offer?
A: If a background check reveals that an applicant has intentionally failed to answer a legitimate question about their conviction history, the employer may revoke the conditional offer or take adverse employment action without engaging in the Article 23-A analysis or Fair Chance Process. The law provides a process for applicants to address errors or discrepancies in their conviction history and what was reflected in a criminal background check.
Q: Can I Hire Or Transfer Someone To Fill In For An Applicant Or Employee While I Engage In The Fair Chance Process?
A: Only on a temporary basis. After the employer delivers the Article 23-A analysis and Fair Chance Notice, the law specifically prohibits employers from permanently placing another person in the applicant’s prospective or current position.
Q: What Are The Fines/Penalties?
|Employer Size||1st Violation||2nd Violation (within 3 years of the resolution date of the first violation)|
The law outlines a process for notice and contesting liability.