October 27th, 2015 is a date all private employers in NYC should take note of. The reason for this is simple. This is when New York City’s “Ban the Box” law took effect. For employers, this is a potential game changer. It means that they can no longer arbitrarily use criminal background checks during recruitment. It also means that there is now one more legal basis on which they can get sued.
Beyond merely taking note of the date, private employers in NYC need to actually study the law. At a minimum, they should understand its motivation, key provisions and implications. We shall outline each of these briefly. However, let’s begin by looking at a brief history of the law.
A Brief Background
The NYC Ban the Box law is called the Fair Chance Act (FCA). The FCA was actually signed into law by Mayor Bill Di Blassio on June 30th, 2015. It was given 120 days before taking effect – hence its coming into effect on October 27th.
The FCA started out as a private members’ bill sponsored by New York City Council Member, Jumaane Williams. The bill was passed by the NYC Council on June 10th, after it had gathered a 45 to 5 majority in a council vote. The council then passed the FCA onto the Mayor, who signed it into law 20 days later.
The NY Fair Chance Act is actually only the latest manifestation of a movement which first emerged in the 1980s. The movement – called “Ban the Box” was started in Hawaii with the vision of giving ex-offenders a chance at gaining employment. It campaigned vigorously to ban employers from inquiring about job applicant’s criminal records, until the applicant has had an opportunity to present their credentials.
The movement has gained traction in the US mainland over the last two years. At least 17 states and 100 municipalities have enacted “Ban the Box” legislations. New York City’s FCA therefore puts it along side jurisdictions like Hawaii, Rhode Island, New Jersey, Minnesota, Massachusetts and Oregon.
Why “Fair Chance” Act
The goal of the FCA is to give ex-offenders in NYC an opportunity to gain employment. The NYC Mayor, Bill de Blassio said it best.
While signing the bill into law, he said:
“This bill opens the door to jobs for New Yorkers who have already paid their debt to society, rather than condemning them to a grim economic future. Now, all applicants will get a fair shot at the opportunities that can lead them on a pathway to success.”
The rationale behind the FCA is this: when ex-offenders have an opportunity to present their credentials before being asked about their criminal backgrounds, it increases their chances of employment. This is certainly true. At a minimum, it gives them a “fair chance” at employment (unlike when inquiries about criminal backgrounds are made before they have presented their credentials – in which case they don’t even get the chance to present them).
By giving ex-offenders a chance at employment, the FCA aims to reduce the likelihood of recidivism (reoffending). Studies have showed that the rates of recidivism are much lower among ex-offenders who manage to become gainfully employed.
However, the FCA isn’t just intended to benefit ex-offenders. It is also intended to benefit employers. In the words of the Council Member Jumaane Williams, “employers will have access to a broader range of qualified candidates to consider.”
Ultimately, the FCA is intended to benefit everyone. For ex-offenders, it is intended to provide a fair shot at employment. For employers, it is intended to offer a wider pool of candidates to consider. For the winder community, it is intended to reduce cases of recidivism. Basically, it is a win-win all round.
Not A New Law
The NY Fair Chance Act is technically not a new law. It is actually an amendment of the NYC Human Rights Law (NYCHRL). The amendment was included as Intro. 318-A. The 318-A places serious restrictions on how employers can use an applicant’s or employee’s criminal history when making employment decisions.
Given that the FCA falls under the NYCHRL, its partial enforcement falls under the NYC Commission on Human Rights (NYCCHR). This means that the NYCCHR is responsible for pursuing employers who violate the Act.
Key Provisions of the FCA
At its core, the FCA bans employers from making inquiries about an applicant’s criminal background until they have extended to them a “conditional offer of employment.” This means that any such inquiries during the application process or job interviews are prohibited. The prohibition is extended to conducting criminal background checks using either public criminal records or credit checks.
Under the FCA, an employer can only make criminal background inquiries after extending a conditional offer of employment. A conditional offer is basically an offer of employment which is contingent on the applicant passing a criminal background check.
When an applicant fails the background check, the employer is free to withdraw the offer. However, the FCA spells out a strict protocol which needs to be observed before an employer’s adverse action can be considered valid.
They include the following:
- An employer should provide the applicant with a written copy of the criminal background record inquiry.
- The employer should perform an analysis mandated under the Article 23-A of the New York State Correction Law. Article 23-A states that there must be a correlation between the criminal record and the job for which an applicant is being denied employment.
- The employer should provide the applicant with a copy of their Article 23-A analysis, and state in writing why they haven’t been hired.
- The employer should give the applicant a minimum of 3 working days to challenge the contents of the Article 23-A analysis and the background inquiry. During this time, they should leave the position open.
The FCA states that enforcement can be carried out either administratively or through courts of law. It states that whoever is aggrieved under the law can seek for intervention of the NYCCHR. It empowers the NYCCHR to place punitive measures on violators. The law also provides that those aggrieved can seek redress in a court of law.
Exemptions To The FCA
The NY Fair Chance Act doesn’t apply to all private employers within New York City. There are three possible scenarios in which an employer can become exempt from the Act. The first is for positions where criminal background checks are mandated by other federal, state or local laws. The second is for positions where a criminal background precludes employment.
The third is for employers who have less than four employees. The Act states that for an employer to become subject to it, they must have a minimum of four employees. This includes both employees working within NYC and those working in other legal jurisdictions outside NYC.
Implications for Private Employers
The Fair Chance Act carries serious implications for private employers within NYC. It means that they cannot conduct criminal background checks haphazardly. They have to conduct them within the provisions of the Act.
Those who violate the Act will find themselves facing sanctions from the NYCHRC or even possible lawsuits. Given the recent rise in background-check related lawsuits and class actions, the FCA may be yet another legal tripwire for employers.
To avoid running afoul of the NY Fair Chance Act, every employer must take two measures. The first is to study the FCA and understand the provisions which apply to them. The second is to change their criminal background checking policies to abide by the FCA’s provisions. Any employer who does this will have absolutely nothing to fear from the FCA.