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NYC Employers Prohibited From Asking Applicants About Criminal History on Applications

On June 29, 2015, New York City Mayor Bill de Blasio signed a bill that prohibits New York City employers from asking applicants about their criminal history on job applications. Under the new law, employers may not ask applicants about criminal convictions or pending arrests on applications. The law, entitled the Fair Chance Act, prohibits employers from inquiring about an applicant’s conviction record or pending arrest until after a conditional offer of employment has been extended. Under the new law, employers who make inquiries into an applicant’s criminal history after a conditional offer of employment has been extended and determine that information warrants an adverse employment action must follow a rigorous process. Prior to taking the adverse action the employer must:

  1. Provide a copy of the criminal background check or inquiry to the applicant;

  2. Perform an analysis of the applicant, as required by Article 23(a) of the New York Correction Law, with supporting documentation to support the adverse action and provide the documentation to the applicant; and

  3. Allow the applicant at least three business days to respond to the written analysis by holding the position open during this time.

The analysis performed by employers must be based upon eight factors to weigh when determining whether to hire a person with a criminal record pursuant to Article 23-A. Some of these factors include the duties of the job, the seriousness of the criminal offense, and the amount of time elapsed since the conviction. There are limited exceptions to the law. The main exception applies when an employer is required, under federal, state, or local law, to conduct criminal background checks for employment purposes.

The law becomes effective on October 27, 2015 and will apply to New York City businesses with four or more employees. New York City will join many other jurisdictions with this so-called “Ban the Box” law. All New York City employers must take measures to ensure compliance with the ordinance.Contact PMP for any particulars.

This article is intended for general information only and should not be construed as legal advice.

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