Employers must be aware of the changes to the New York City Administrative Code effective October 27, 2015, which prohibits employers from asking applicants regarding their criminal histories (typically called “Ban the Box”) prior to a conditional offer of employment. Under the new law called the Fair Chance Act (the “Act”) – which affects employers of four or more employees – employers may not (1) ask the applicant during an interview, (2) include a question on an application, or (3) conduct a separate search using public sources, such as the internet, to elicit information regarding an applicant’s criminal convictions or arrest records. The Act contains limited exceptions for persons who apply for law enforcement positions or for licenses concerning the regulation of firearms and explosives. Also, the Act does not prevent an employer from conducting a background check required by state, federal or local law that mandates criminal background checks or that bars employment based on a criminal history. An example of such requirement is regulations of a self-regulatory organization such as FINRA.
The new law further makes it unlawful to post an advertisement for a job that contains any direct or indirect employment limitation based on an arrest or criminal conviction.
For a temporary staffing company, a conditional offer of employment (for which an employer may conduct a criminal background check) occurs when the candidate is placed in the general candidate pool that the staffing company considers for a temporary job placement.
The Act does not change the existing requirement under the New York City and New York State Laws to conduct an analysis of the applicant’s criminal history in order to consider disqualifying the applicant (also called an “individualized assessment”). However, under the amended City law, before an employer can disqualify an applicant, it must provide the applicant (1) three business days (instead of five under the Federal Fair Credit Reporting Act, 29 U.S.C. 15 U.S.C. § 1681 et seq.) to respond to the background check results, and (2) any supporting documentation the employer used to decide a potential adverse action against the applicant.
Gibbons attorneys in the Employment & Labor Law Department are available to assist employers in these matters and related litigation.