New York City Signs Ban The Box Legislation

July 20, 2015

Effective October 27 of this year, New York City employers may no longer inquire about an applicant’s criminal history. The Fair Chance Act (Act), signed into law on June 29, protects applicants with a prior criminal record from being summarily rejected from the employment process without a chance to give an explanation. Although several states, including California and New Jersey, have already implemented “ban-the-box” legislation, New York State has not yet passed a statewide rule.

New York City’s employers may not seek any information regarding an applicant’s prior arrests or convictions without first extending a conditional employment offer. Unlawful inquiries include asking the applicant directly, searching publicly available records, or obtaining criminal information from consumer reports.

Upon discovering an applicant’s criminal record, employers may not automatically revoke a conditional offer. Under New York State law, prior convictions may only be used against applicants if there is a direct relationship between the crime and the nature of the job, or if hiring the applicant poses an unreasonable risk. Circumstances surrounding the conviction must be considered, including the length of time that has elapsed since the crime’s commission, and information that shows the applicant’s rehabilitation or good character.

The Act provides procedures to revoke a conditional offer. A written copy of any inquiry made into criminal history, as well as the employer’s reasoning for using it to reject an applicant, must be filed with the City and given to the applicant. The employer then must grant at least three days for the applicant to correct errors in the record or provide further information regarding his or her qualification.

The Act applies to most employers in New York City with four or more employees. If any federal, state, or local law requires the employer to make an inquiry into an applicant’s criminal history, the Act does not apply to that employer.

The City Commission on Human Rights may pursue actions against private employers that fail to comply with the Act. Violations of the Act are treated as unlawful discriminatory practices and can result in civil penalties or punitive damages.

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