Reminder for NYC employers: ban on criminal background checks takes effect today

Less than two months after the effective date of a new law barring employers’ use of credit checks, another new law restricting the pre-employment process takes effect in New York City today, October 27, 2015 (the Fair Chance Act or the Act). As we previously reported here, the Act prohibits employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended. The term “inquiry,” as defined in the Fair Chance Act, includes questions posed to the job applicant him/herself, as well as pre-offer searches of public records and certain consumer reports.

 

In addition, for employers that intend to take an adverse employment action based on a criminal inquiry made after a conditional offer is extended, the Fair Chance Act prescribes a rigorous notice procedure:

 

-First, the employer must provide a copy of the relevant inquiry to the job applicant (in a manner to be determined by the city’s fair employment practices agency, the NYC Commission on Human Rights (NYCCHR)).

 

-Next, the employer must perform the analysis set forth in Article 23-A of the State Correction Law to determine whether the applicant’s criminal past warrants disqualification from employment.  The employer must then provide a copy of its analysis to the applicant. Late last week, the NYCCHR published a template form, known as the Fair Chance Notice, for use in such circumstances.

 

-Finally, following an applicant’s receipt of these disclosures, the employer must afford the applicant at least three business days to respond. During this period, the employer must hold the position open for the applicant.

 

Failure to adhere to these stringent protocols may be deemed a violation of the Fair Chance Act.