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:
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.
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:
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.
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.
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:
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.
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.
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.