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New York City Expands the Scope of Its Ban-the-Box Law

On January 10, 2021 amendments to New York City’s Fair Chance Act (FCA) (“Ban-the-Box”) were signed into law and take effect on July 28, 2021. The original law prohibited employers with 4 or more employees from asking about an applicant’s pending arrest or criminal conviction record until after making a conditional job offer. The New York Fair Chance Act will now apply to all employers regarding employees in NYC.

The amendments impose significant restrictions on an employer’s ability to take adverse action against a job applicant or current employee based on pending criminal charges or arrests, or convictions during employment.

The FCA amendments establish “relevant fair chance factors” that employers must consider before taking adverse action against a job applicant or employee based on a pending arrest, criminal accusation or criminal conviction. These “relevant fair chance factors” include the following:

- The duties and responsibilities necessarily related to the employment sought or held by the individual;

- The bearing, if any, of criminal offenses or alleged wrongdoing on the individual’s fitness or ability to perform the duties of the position;

- Whether the individual was 25 years old or younger at the time of the occurrence of the criminal offense(s) for which the individual was convicted, or that are alleged in the case of pending arrests or criminal accusations;

- The seriousness of the offense(s);

- The employer’s legitimate interest in protecting property, and the safety and welfare of specific individuals or the general public;

- Any additional information provided either by or on behalf of the applicant or employee regarding the individual’s rehabilitation or good conduct.

Under the FCA amendments, an employer can withdraw a conditional offer of employment or take adverse action only after identifying either of the following:

- A direct relationship between the criminal conduct or alleged wrongdoing and the employment sought or held, OR;

- The granting or continuation of the employment would involve an unreasonable risk to property, safety or welfare of specific individuals or the general public.

The FCA amendments also extend protections to current employees in connection with convictions that occur during employment. The current FCA process only applies to applicants for employment but once the amendments take place, the FCA notice and review process will apply before employers take adverse action based upon an employee’s conviction during employment.

The amendments also prohibit employers from considering or inquiring into non-pending arrests and criminal accusations, cases that may be dismissed, youthful offender cases, and convictions sealed under certain sections of criminal procedure law. Additionally, employers may not inquire into, consider, or deny employment based upon violations or non-criminal offenses.

The FCA amendments not only apply to applicants and employees but also to independent contractors and freelance workers. Independent contractors and freelances are considered “employees” for certain purposes under the NYC Human Rights Law, so employers must apply the FCA to these individuals as well.

An employer is, however, permitted to take adverse action against an applicant or employee who deliberately mispresents their arrest or conviction history so long as:

- The adverse action is not based on the employee’s failure to disclose information that a person may not be required to disclose;

- The employer provides the individual with a copy of the documents supporting the employer’s finding of intentional misrepresentation; and

- The individual is given a reasonable time to respond.

Employers have until July 28, 2021, to become familiar with these new employee protections and plan accordingly.Reach out to PMP if you have any questions.


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