New York, NY: Ban-the-Box Protections Expanded

The New York City Fair Chance Act (FCA) was recently expanded to provide additional protections to applicants and employees with respect to criminal background searches. Currently, the ban-the-box law prohibits criminal history inquiries prior to a conditional offer of employment. The FCA’s protections will now also apply to applicants and employees with pending arrests, and employees with criminal convictions.

The FCA’s coverage was also extended to include an assessment process for determining whether to take an adverse action against someone based on arrest and conviction history. An employer may only rescind a conditional job offer after considering fair chance factors after determining “that either (i) there is a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

For arrests or convictions preceding employment, employers must follow the fair chance factors set forth by the state. However, for pending arrests at the time of job application or arrests or convictions occurring during employment, employers must consider the following “relevant fair chance” factors:

• New York City’s policy to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
• The specific duties and responsibilities necessarily related to the employment held by the person;
• The bearing of the criminal offense(s) on the person’s fitness or ability to perform their job duties;
• Whether the person was 25 or younger at the time of the offense(s);
• The seriousness of the offense(s); and
• The legitimate interest of the public agency or private employer in protecting property, and
• the safety and welfare of specific individuals or the general public; and
• Any additional information produced by the individual related to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

Before actually taking adverse action, the employer must request information from the employee relating to the fair chance factors, perform an analysis, provide a copy of the analysis and background check to the employee, and allow the employee a reasonable time to respond before taking adverse action. “Conditional offer of employment” was defined consistent with the current regulations. However, certain information (e.g., drug screenings, reference checks, etc.) does not fall within the definition, indicating that these types of screenings may need to be conducted before the criminal history check process, because they cannot form the basis of revoking a conditional offer of employment. The types of criminal records that may be considered was also further restricted. Additionally, the amendments clarify that employers may take adverse action for intentional misrepresentations made about arrest or conviction history, subject to limited exception.

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