Back in June, we reported that the New York City Council passed, and Mayor Bill de Blasio had signed into law, the New York City Fair Chance Act (FCA). This new law prohibits most employers (with limited exceptions for law enforcement, industries that require background checks under federal, state, or local law, etc.) from inquiring about an applicant’s arrest or criminal conviction record until a conditional offer of employment is extended. This is just a friendly reminder that the FCA is now effective as of October 27, 2015 in New York City. If you have not already done so, employers with operations in New York City should review their employment applications and other hiring policies to ensure compliance with this new law.
So called “Ban The Box” legislation has been enacted in several states, and over one hundred other jurisdictions, in order to prevent individuals with arrest and criminal conviction records from being dismissed early in the employment application process. This legislation, most notably, prohibits questions commonly found in employment applications that require applicants to disclose arrest and/or criminal conviction history. Moreover, this new law prohibits an employer’s independent investigation of arrest and/or criminal history, as well as verbal inquiries regarding the same, prior to a conditional offer of employment.
Please note that, even after a conditional offer is made, Article 23(a) of the New York Correction Law still applies. The New York Correction Law contains strict requirements and restrictions if an employer in New York state wishes to conduct a post-offer criminal background check and/or rescind an offer of employment because of an individual’s criminal history. In sum, all employees who are responsible for hiring should be aware of these restrictions and know to proceed cautiously when criminal history issues arise.