Even when an applicant with a criminal history has shown extensive rehabilitation efforts and good conduct since the offense in question, many employers still nonetheless discriminate against, and refuse to hire, applicants with criminal records.
As such, in 2015, New York City enacted the Fair Chance Act (“FCA”), more commonly known as the “Ban the Box” law, and on August 5, 2017, the New York City Commission on Human Rights’ Final Rules and Regulations (“Rules”) for the FCA went into effect. Under the FCA, employers with at least four employees are prohibited from inquiring about a job applicant’s criminal history until after a conditional offer of employment has been made to the applicant.
Some noteworthy changes to the FCA that are included in the Rules are as follows:
- Criminal Background Check Process
An employer may not inquire about an applicant’s criminal history or request permission to run a criminal background check until after the employer makes the applicant a conditional offer. Employers also cannot make an inquiry or explore information about pending criminal charges before a conditional offer of employment is made. Further, an employer can never require an applicant to disclose, nor may it consider, non-convictions, such as criminal accusations that were terminated in favor of the applicant, were adjudicated as a youthful offender, or resulted in a sealed conviction.
- Per Se Violations
The Rules create a category of “per se violations,” which are defined as “an action or inaction that, standing alone, without reference to additional facts, constitutes a violation of [the FCA], regardless of whether any adverse employment action was taken or any actual injury was incurred.” Thus, regardless of whether adverse action is actually taken by the employer, the following are deemed per se violations:
- Declaring, printing, or circulating of any solicitation, advertisement, policy, or publication that expresses, directly or indirectly, orally or in writing, any limitation or specification in employment regarding criminal history. This includes, but is not limited to, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record;”
- Using job applications that require applicants to consent to background checks or request information regarding criminal history prior to a conditional offer of employment being given;
- Making any inquiry or statement relating to an applicant’s pending arrest or criminal conviction before a conditional offer of employment is extended;
- Using publicly available records or conducting searches on the Internet to learn about an applicant’s criminal history;
- Failing to comply with the procedural notice requirements in the event of withdrawal of a conditional offer of employment because of information in an applicant’s criminal conviction background report; and
- Requiring applicants or employees to disclose information about an arrest that, at the time disclosure is required, did not result in a criminal conviction.
- Inadvertent or Unsolicited Disclosure
If an employer inadvertently learns of an applicant’s criminal history without solicitation or inquiry before a conditional offer is made, as long as the employer does not inquire further about the criminal history or use the information for hiring purposes before making a conditional offer of employment, the employer will not be liable under the FCA.
- Information Regarding Conviction History Obtained After a Conditional Offer
After an employer extends a conditional offer to an applicant, an employer may (1) ask, either orally or in writing, whether an applicant has a criminal conviction history; (2) run a background check or, after receiving the applicant’s permission and providing notice, use a consumer reporting agency to do so; and (3) once an employer knows about an applicant’s conviction history, ask them about the circumstances that led to the conviction and gather information relevant to the Article 23-A factors.
- Withdrawing a Conditional Offer of Employment
Should an employer wish to withdraw the conditional offer of employment or take adverse employment action based on an applicant’s or employee’s criminal history, the employer must first:
- Provide a written copy of the analysis conducted pursuant to Article 23-A, which “must (1) include specific facts that were considered pursuant to the Article 23-A analysis and the outcome, (2) articulate the employer’s, employment agency’s, or agent’s concerns and basis for determining that there is a direct relationship or an unreasonable risk, and (3) inform the applicant of their rights upon receipt of the notice, including how they can respond to the notice and the time frame within which they must respond.”
- “[P]rovide a complete and accurate copy of each and every piece of information relied on to determine that the applicant has a conviction history,” including but not limited to Internet search results, third-party reports, and “written summaries of oral conversations.”
- Provide the applicant with a reasonable period of time (which must be three days or longer) in which to respond to the report. In this process, the employer “must affirmatively request information concerning clarification, rehabilitation, or good conduct while engaging in the Article 23-A analysis.” The employer also has a duty to hold the position open while the applicant gathers this information.
- Consider any additional information provided by the applicant and provide a written final determination addressing any such additional information provided.
If an applicant realizes that there is an error on a criminal background check, they must inform the employer of the error and request the necessary time to provide supporting documentation. If a background check reveals that an applicant has intentionally failed to answer a legitimate question about their conviction history, the employer may revoke the conditional offer or take an adverse employment action. Withdrawal of the employment offer would still need to comply with the FCA.
- Temporary Help Firms
While temporary help firms must comply with the FCA, these firms may only consider the minimum skill requirements and qualifications necessary in order to evaluate convictions to determine whether they are job-related. Temporary help firms cannot make determinations about an applicant’s suitability based upon an employer’s preference to disqualify individuals with specific types of convictions.
- Rebuttable Presumption
There is a rebuttable presumption that a withdrawal of a conditional offer of employment was motivated by an applicant’s criminal history. In order to rebut the presumption, employers can show that the withdrawal was based upon a permissible physical examination, material information it could not have reasonably known before extending a conditional offer, or evidence that the employer had no knowledge of the applicant’s criminal history prior to rescinding the offer.
If you were denied a job due to your criminal history, we recommend consulting with a New York City employment discrimination attorney to determine whether your legal rights were violated.