CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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August 2, 2017

Rules Interpreting New York City’s “Ban The Box” Law To Take Effect

On August 5, 2017, final rules (“Rules”) interpreting New York City’s Fair Chance Act (“FCA”), commonly known as the “Ban the Box” law, will take effect. The FCA itself has been in effect since October of 2015. The FCA amended the New York City Human Rights Law’s provisions regarding discrimination on the basis of criminal history against job applicants and employees. It also addressed discrimination against applicants for licenses, registrations, and permits. Specifically, the FCA prohibits employers from inquiring about criminal convictions until after the applicant has been offered a job. For more information regarding the FCA, see our previous alert: http://putneylaw.com/cu_061815.html.

Key Provisions

Per Se Violations”

The Rules establish certain definitions and procedures applying to the FCA. The Rules define a new category of “per se violations” to include “an action or inaction that, standing alone, without reference to additional facts, constitutes a violation of [the FCA], regardless of whether any adverse employment action was taken or any actual injury was incurred.” For example, “per se violations” include:

  • Referring to criminal convictions or criminal background checks in job postings, advertisements, or other publications. This includes, but is not limited to, phrases such as “no felonies,” “background check required,” and “must have clean record.”
  • Using applications for employment that require applicants to either grant the employer permission to run a background check, or provide information regarding criminal history prior to a conditional offer.
  • Making any statement or inquiry regarding the job applicant’s pending arrest or criminal conviction before a conditional offer of employment is extended.
  • Using, within New York City, a boilerplate form for a job application intended to be used across multiple other jurisdictions, where such form requests or refers to the applicant’s criminal history. Such a practice would be a per se violation even if the form states that applicants should not answer specific questions if applying for a position subject to the New York City Human Rights Law.
  • Failing to comply with the requirements of the Human Rights Law, when applicable, to: (a) provide the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history; (b) to share with the applicant a written copy of the employer’s Article 23-A analysis (see our prior alert for a discussion of the Article 23-A analysis); or (c) to hold the prospective position open for at least three (3) business days from the date of the applicant’s receipt of both the inquiry and the analysis.
  • Requiring applicants or employees to disclose an arrest that, at the time of disclosure, has resulted in a non-conviction. A non-conviction includes termination of any arrest or criminal accusation, not currently pending, that was concluded by termination in favor of the individual, adjudication as a youthful offender, conviction of a non-criminal offense that has been sealed, or certain sealed convictions.

If the NYC Commission concludes that there is a per se violation, it may assess fines under the “Early Resolution Process.” Under this process, the employer admits liability and pays a fine based on its size and the number of its previous violations. Employer fines would conform to the following schedule:

Employer Size (at the time of the violation)

First Violation

Second Violation (within 3 years of the resolution date of the first violation)

4-9 employees

$500.00

$1,000.00

10-20 employees

$1000.00

$5,000.00

21-50 employees

$3,500.00

$10,000.00

Withdrawing Conditional Offers of Employment or Taking Adverse Employment Action

The Rules provide further guidance regarding the process by which employers may withdraw conditional offers of employment based on information learned from an applicant or employee’s criminal conviction history report. The employer must:

  • Provide a written copy of any inquiry made to collect information about a criminal history to the applicant, including but not limited to consumer reporting agency reports, internet searches, public records, written summaries of oral conversations.
  • Provide a written copy of the Article 23-A analysis to the applicant. Employers need not use the form drafted by the Commission for this purpose, but the material substance must not be changed. The Commission’s sample form may be found at: http://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf.
  • Inform applicants that they will be given a reasonable time (no less than three business days) to respond to the employer’s concerns. The employer “must affirmatively request information concerning clarification, rehabilitation, or good conduct while engaging in the Article 23-A analysis. The Rules also provide the protocol for the employer’s duty to hold the position open while the applicant gathers this information. Because the three-day “reasonable time” period only begins once the applicant receives both the inquiry and notice of the inquiry, the “Legal Enforcement Guidance” set forth by the NYC Commission on Human Rights recommends that employers confirm receipt, “either by disclosing the information in person, electronically, or by registered mail. Such method of communication must be mutually agreed on in advance by the applicant and employer.” Thus, employers should advise applicants in the employment application itself that communications may be made via e-mail.
  • Consider any additional information provided by the applicant during this period.

 

Inadvertent Discovery or Voluntary Disclosure of Criminal Conviction History

An employer is not automatically liable where the employer, an employment agency, or an agent thereof inadvertently discovers an applicant’s criminal history prior to a conditional offer of employment, or where the applicant provides such information without solicitation. However, liability is created where the employer, employment agency, or agent thereof uses such 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.”

Internet Searches

Employers, employment agencies, or agents thereof cannot search for terms relating to criminal history, such as “arrest,” “mugshot,” “warrant,” “criminal,” “conviction,” “jail,” or “prison,” nor can they search websites that purport to provide information regarding arrests, warrants, convictions, or incarceration information for the purpose of obtaining criminal history.

Applicant’s Intentional Omission

The Rules provide that the employer, employment agency, or agent thereof “may revoke the conditional offer or take an adverse employment action” where a background check reveals that an applicant “intentionally failed to answer a legitimate question about their conviction history.”

Takeaway for Employers

Covered employers should review and revise their hiring practices, including but not limited to their interview questions, application forms, and background check procedures, to ensure that they comply with the FCA.

In order to expedite the application process so that the employer will not have to hold a position open for longer than necessary, employers should inform the applicant in the application form that by submitting the application, the applicant consents to receipt of communications via e-mail.
We remind employers that New York State Law also provides certain limitations on an employer’s right to consider criminal convictions in employment decisions.  Further, the U.S. Equal Employment Opportunity Commission has published guidance that recommends “banning the box” from applications due to the potential for disparate impact under Title VII.  (See our Client Alert at http://www.putneylaw.com/cu_042712.html).  To further complicate the recruitment and hiring process, effective October 31, 2017, New York City employers will be prohibited from inquiring about or relying on a prospective employee’s salary history during the hiring process. Accordingly, employers, particularly those that operate in multiple jurisdictions, must make sure they are in compliance with all applicable, and ever-evolving, laws on recruitment, hiring, background checks, and criminal records.

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If you have any questions regarding New York City’s Fair Chance Act, please do not hesitate to contact us.