New York City Passes Ban-the-Box Legislation Affecting Private Employers - A Creative Services, Inc. Compliance Corner Article

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New York City Passes Ban-the-Box Legislation Affecting Private Employers

06.18.15

On June 10, 2015, the New York City Council voted to prohibit private employers from asking job applicants questions about criminal convictions on job applications.  Under the Fair Chance Act (the “Act”) an employer may ask about an applicant’s criminal history and conduct a criminal background check only after extending the conditional offer.  If the employer then withdraws the offer, it must explain its decision to the applicant in writing and hold the position open for three (3) business days so that the applicant can respond.

Currently, six states have enacted “ban the box” laws that apply statewide to private employers: Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island.  In addition, 15 states and nearly 100 cities nationwide have enacted similar legislation and/or signed similar executive orders making it unlawful for state, city, county and other local agencies to inquire about an applicant’s criminal history on employment applications. 

What You Need to Know
The Act prohibits employers from asking such questions on a written application, in an interview, or otherwise or searching public records or consumer reports that contain criminal background information prior to making the conditional offer.  After the conditional offer, employers who obtain criminal background information about the applicant and take adverse action based on that information must comply with a detailed notice procedure by:

(1) Providing a copy of the relevant inquiry to the job applicant (in a form to be determined by the New York City Commission on Human Rights);
(2) Performing the analysis required by New York State Correction Law Article 23-A to determine whether there is a direct relationship between the prior criminal history and the position.
(3) Providing a copy of the multi-factor Article 23-A analysis to the applicant in writing. The employer must state the reasons for the decision to withdraw the conditional offer and provide any supporting documentation.
(4) Holding the position open for three business days after giving the applicant the inquiry and analysis so that the applicant can respond with additional or mitigating information.

The law contains several exemptions. For example, it does not apply to positions where federal, state or local laws require criminal background checks, or to positions where a criminal conviction precludes employment.

What You Need to Do
Employers should review their employment applications to ensure that any questions comply with local and state law.  Impacted employers also should ensure that all hiring and recruiting personnel are aware of “ban the box” laws, whether they currently apply to them or not.

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