On June 29, 2015, New York City Mayor Bill DeBlasio signed, into law, the New York City Fair Chance Act, Local 63 of 2015 (the “Fair Chance Act,” the “NYCFCA,” “Local Law 63” or the “new Law”), which takes effect on October 27, 2015. The Fair Chance Act prohibits most employers in New York City, other than employers in the securities industry, from asking an applicant for employment, either orally or on an employment application, about his or her arrest history or criminal record until after the employer has made, to the applicant, a conditional offer of employment.
Because statutes such as the NYCFCA effectively require employers to remove, from their employment applications, any check box that asks whether the applicant has a criminal conviction, such statutes are often termed “ban-the-box” laws.
Under Local Law 63, once an employer in New York City has extended, to a prospective employee, a conditional offer of employment, (i) the employer may require the prospective employee to complete an employment application that inquires about the prospective employee’s arrest history or criminal record, and (ii) the employer may inquire, orally or in writing, about the prospective employee’s criminal history.
However, the NYCFCA requires that, before the employer declines to hire an applicant for employment based on such an inquiry about the applicant’s arrest history or criminal conviction record, the employer must:
- Provide a written copy of the inquiry to the applicant.
- Perform, and provide in writing to the applicant, an analysis of the applicant under N.Y. Correction Law § 752, which prohibits employers in New York State from firing or refusing to hire an individual because he has been convicted of one or more crimes, unless (1) “there is a direct relationship between one or more of the previous criminal offenses and the specific . . . employment sought or held by the individual; or (2) . . . 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.” See also N.Y. Correction Law § 753 (setting forth factors which an employer in New York State must consider in determining whether the person’s criminal conviction is directly related to the job or whether employment would pose an unreasonable risk).
- After giving the applicant the inquiry and analysis in writing, allow the applicant a reasonable time to respond, which must be no less than three (3) business days.
- During the applicant’s reasonable time to respond, hold the employment position open for the applicant.
Local Law 63 amends sections 8-102 and 8-107 of the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 – 8-131.
The Fair Chance Act applies to employers in the private sector in New York which employ four or more individuals. Further, the NYCFCA applies to State and municipal governments and agencies in New York which employ 15 or more individuals. The new Law does not apply to the U.S. government.
The new Law’s prohibition of employers in New York City from requesting the arrest history or criminal conviction record of a job applicant before making, to the applicant, a conditional offer of employment does not apply to employers that are required, by federal, state or local law or by a self-regulatory organization (an “SRO”) as defined by the Securities Exchange Act of 1934, to perform criminal background checks for employment purposes or to prohibit employment based on criminal history.
Thus, for example, employers in the securities industry remain free to consider consumer credit history for employment purposes.
Firms in the securities industry fall within Local Law 63’s above-mentioned, ‘required by law’ exemption because the Financial Industry Regulatory Authority, Inc. (“FINRA”), an SRO, requires firms in the securities industry “to ascertain by investigation the good character, business repute, qualifications, and experience” of a job applicant before the firm applies to register that applicant with FINRA. See FINRA R. 3110(e); see also Disclosure Questions 14A and 14B of the Form U-4 (Uniform Application for Securities Industry Registration or Transfer) (asking prospective employees in the securities industry about criminal convictions and criminal charges).
Among other exceptions, the NYCFCA permits a business in New York City, even before the employer has extended, to a job applicant, a conditional offer of employment, to make the applicant complete an employment application that asks about the applicant’s arrest record or criminal record, and to ask, orally or in writing, about the applicant’s arrest record or criminal record, if the employment sought or being considered is:
- for a position in law enforcement, corrections, or the court system; or
- for certain positions within the New York City Department of Citywide Administrative Services.
Local Law 63 also bars employers in New York City from knowingly declaring, printing or circulating, or causing to be declared, printed or circulated, any job advertisement that expresses, directly or indirectly, that employment is conditioned or limited based on an applicant’s arrest or criminal conviction, unless the advertisement solicits applicants for one of the above-described, exempt positions.
Workers or job applicants whose employers or prospective employers in the private sector discriminate against them based on their arrest record or criminal conviction record, like employees aggrieved by other discriminatory practices made unlawful by the New York City Human Rights Law, may sue their employers for and may recover, among other remedies, non-capped compensatory damages, punitive damages, and, if they prevail and at the court’s discretion, costs and reasonable attorney’s fees. See N.Y.C. Admin. Code § 8-502(a), 8-502(g).
Seven states have passed legislation that limits the ability of employers in the private sector to make job applicants disclose their criminal histories. These states are New Jersey, Hawaii, Illinois, Massachusetts, Minnesota, Oregon, and Rhode Island.