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March 9, 2016

New York City Commission on Human Rights Publishes Proposed Rules to Amend the Fair Chance Act

On February 16, 2016, the New York City Commission on Human Rights (the “Commission”) published proposed rules (the “Proposed Rules”) to amend the City’s Fair Chance Act (the “Act”), also known as the “Ban the Box” law. The Act essentially requires that employers not inquire into the criminal backgrounds of applicants until a conditional job offer is made, and sets forth a procedure if an employer decides to withdraw the offer based on an applicant’s criminal history. For further information on the Fair Chance Act, see our alert dated June 18, 2015, available at Notably, the Proposed Rules would establish per se violations for certain employment actions. Under the Proposed Rules, an employer commits a per se violation by:

  • Circulating a solicitation, advertisement, or publication that suggests, directly or indirectly, any limitation or specification in employment regarding criminal history
  • Making any statement or inquiry relating to an applicant’s pending arrest or criminal conviction before making a conditional offer of employment
  • Using employment applications that require applicants to either grant employers permission to run a background check or provide information regarding criminal history 
  • Using a standard application form, intended for multi-jurisdictional use, containing a disclaimer that applicants in New York City should not answer specific questions
  • Failure to comply with any of the requirements listed in the Fair Chance Process before revoking a conditional offer of employment

The Proposed Rules would also clarify the Act’s exemptions, as well as prohibit an employer from taking adverse employment actions against individuals with pending criminal cases.

Takeaway for Employers

The Commission will hold a public hearing on March 21, 2016. Any written comments concerning the proposed amendments must be submitted by that date. The Proposed Rules, if adopted, will significantly limit the information employers can use to make employment decisions and how employers can use that information.

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If you have any questions regarding the Proposed Rules or the Fair Chance Act, please do not hesitate to contact us.