On June 10, 2015, the New York City Council passed the Fair Chance Act by a vote of 45-to-5. The legislation prevents employers from inquiring about job applicants’ criminal arrests and convictions prior to hire. Employers will be permitted to make such inquiries after an applicant receives a conditional job offer but only provided that narrow requirements are met. Once the law is enacted, New York City will join other states and cities that have passed similar “ban the box” restrictions (such as the District of Columbia, Chicago, San Francisco, Seattle, New Jersey, Illinois, Rhode Island, Minnesota).
The Fair Chance Act applies to all New York City employers with four or more employees (either inside and/or outside of the city). A company’s independent contractor that is not itself an employer counts as an employee towards the company’s four-employee threshold. New York City Mayor Bill de Blasio has publicly stated that he will sign the legislation, which becomes effective 120 days after signing.
The New York City Fair Chance Act prevents employers from specifying that employment will be based upon a person’s arrest or criminal conviction record. Employers also generally are prohibited from inquiring about a job applicant’s arrest or criminal conviction record prior to hire. This prohibition includes questions to the applicant, searches of publicly available records, or background checks covered under the Fair Credit Reporting Act. Employers are permitted to inquire pre-hire about an applicant’s criminal background convictions (but not generally about arrests) only after extending a conditional offer and only if:
- the employer provides a written copy of the background inquiry to the applicant (the manner to be determined by the New York City Commission on Human Rights);
- the employer performs an analysis of Article 23-A of the New York Correction Law, including documentation of such analysis and the reasons for any employment decision, which must be provided to the applicant; and
- the employer allows the applicant at least three days to respond to the decision, while holding the position open for the applicant.
Exceptions Are Narrow
There are narrow exceptions to the new law:
- Positions in law enforcement;
- Instances in which a state, federal, or local law requires that a criminal background check be performed;
- Positions that are susceptible to bribery or that involve the safeguarding of persons vulnerable to abuse, as will be determined by the New York City Commissioner of Citywide Administrative Services.
Individuals can bring a private right of action, or can seek an enforcement action by filing a charge with New York City Commission on Human Rights.
Although the New York City Fair Chance Act is by no means the first “ban the box” law in the country, it is notable for several reasons:
1. Article 23-A Analysis
After extending a conditional offer of employment, the Fair Chance Act expressly requires that employers conduct and document an analysis under Article 23-A of the New York Correction Law. Under that current New York State law, employers may consider felony conviction record information only if the employer establishes: (1) a direct relationship between the previous criminal offenses and the specific employment sought; or (2) that the granting of employment would involve an unreasonable risk to property or the safety or welfare of specific individuals of the general public.
Further, employers considering an employee’s prior felony convictions must weigh the following considerations:
- The public policy of New York, which encourages the employment of persons previously convicted of criminal offenses;
- The specific duties and responsibilities that are necessarily related to the employment sought or held by the applicant or employee;
- The bearing, if any, that the criminal offense would have on an employee’s or applicant’s fitness or ability to perform job duties or responsibilities;
- The time which has elapsed since the criminal offense;
- The age of the person at the time he or she committed the criminal offense;
- The seriousness of the criminal offense;
- Any information regarding rehabilitation and good conduct;
- The legitimate interest of the employer in protecting property, safety, and welfare.
2. Damages & Recovery
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The Fair Chance Act is incorporated under the New York City Human Rights Law, which means employers that violate the Fair Chance Act may be liable for compensatory damages (including back pay, front pay, and emotional distress),uncapped punitive damages, and attorneys’ fees. Further, under the New York City Human Rights Law, a federal Faragher/Ellerth defense is not available, meaning that in most cases an employer will be held strictly liable for unlawful hiring decisions by managers or supervisors. In other words, any violation of the Fair Chance Act — making an unlawful pre-hire inquiry or failing to properly consider and document the New York State Corrections Law Article 23-A factors — could lead to broad recovery by an affected job applicant. For example, non-compliant application forms that inquire about applicants’ prior criminal histories could be deemed a common policy, giving rise to onerous class-wide claims.
3. Trends in Local Laws
Third, the Fair Chance Act represents a growing legislative and enforcement trend under Mayor de Blasio relating to local employment laws. New York City recently passed a law, which becomes effective on September 3, 2015, prohibiting the use of an individual’s credit history to make employment decisions. Further, New York City recently adopted a law requiring that the New York City Commission on Human Rights conduct at least five “paired investigations” per year by sending similarly-qualified testers of differing protected classes to apply for jobs.
What New York Agencies Should Do
Assuming the Fair Chance Act is enacted by Mayor de Blasio (as it is expected to be), New York City employers should review their job application forms and procedures to ensure that inquiries into job applicants’ criminal arrests and convictions do not occur prior to hire. Consideration of arrest information that is resolved in the applicant’s or employee’s favor is never permissible under existing New York State or New York City law. Further, New York City employers should carefully consider the circumstances, after a conditional offer has been made, in which criminal background information may be used in employment decisions. In particular, should an offer be rescinded, employers should always create and provide the applicant with documentation that the New York State Corrections Law Article 23-A factors were considered, giving the applicant at least three days to respond to the decision.
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.