CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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June 18, 2015

The New York City Council Passes the “Ban The Box” Bill

On June 10, 2015, the New York City Council passed a bill that would bar New York City employers from questioning job applicants about their criminal history before a job is offered.  This bill, referred to as the “Fair Chance Act” or the “Ban the Box Act” (in reference to the “box” typically on employment applications that asks about criminal convictions), is expected to be signed into law.

The bill does not require employers to hire people with criminal backgrounds or prohibit employers from running background checks.  Instead, the bill prohibits employers from inquiring about criminal convictions until after the applicant has been offered a job.  The bill applies to employers with at least four employees in New York City.

Any federal, state, or local law requiring criminal background checks would prevail over the Fair Chance Act.  In addition, law enforcement positions will be exempt from the Fair Chance Act.

Takeaway for Employers

Under the bill, if an employer wishes to inquire about an applicant’s criminal history, the employer may only do so after extending a conditional job offer to the applicant.  Once the conditional job offer is extended, the employer can request and review the applicant’s criminal history.  If after reviewing this information, the employer no longer wishes to employ the applicant, the employer must provide a written statement explaining why, along with a copy of the criminal records reviewed.  At that time, the employer must give the applicant at least three days to respond before hiring anyone else for the position.  The three day requirement is intended to give the applicant enough time to question any inaccuracies on the record, and to engage in a discussion with the employer.

In passing the “Ban the Box” bill, New York City joins numerous states, counties and cities that impose restrictions of an employer’s ability to inquire about an applicant’s criminal history.  (Our Client Alert regarding New Jersey’s Ban the Box law is available at http://www.putneylaw.com/cu_081914.html).  Although criminal background checks are not per se prohibited under federal law, the U.S. Equal Employment Opportunity Commission published guidance in 2012 that recommend “banning the box” from applications due to the potential for disparate impact under Title VII.  (Our Client Alert regarding the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions is available at http://www.putneylaw.com/cu_042712.html).  Employers, particularly those that operate in multiple jurisdictions, must make sure they are in compliance with all applicable, and ever-evolving, laws on background checks and criminal records.

We remind employers that New York State Law also provides certain limitations on a covered employer’s right to consider criminal convictions in employment decisions.  (Human Rights Law § 296 (15) and Corrections Law Article 23-A).  For example, under state law, an employer that considers an applicant’s conviction, must also consider:

  • the state’s public policy to encourage the hiring of those with criminal convictions;
  • the duties and responsibilities that are necessary to the job;
  • whether the conviction has a bearing on the applicant’s ability to perform those duties and responsibilities;
  • how much time has passed since the conviction(s);
  • the applicant’s age at the time of the offense;
  • the seriousness of the offense;
  • any information the applicant provides about his or her rehabilitation; and
  • the employer’s legitimate interest in protecting property and the safety and welfare of individuals and the public.

Under state law, an employer that decides not to hire an applicant based on a criminal conviction must, upon the applicant’s request, provide a written statement of the reasons for the decision.  This statement must be provided within 30 days of the request.

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If you have any questions regarding the New York City “Ban the Box” bill, reliance on criminal convictions in employment decisions, or any hiring issue, please do not hesitate to contact us.