Written By ESR News Blog Editor Thomas Ahearn
Private employers in New York City should prepare to Ban the Box on job applications when the Fair Chance Act (FCA) takes effect on October 27, 2015 to promote the hiring of individuals with prior criminal records and prohibit discrimination based on the arrest records or criminal convictions of job applicants.
As reported earlier on ESR News, the New York City Council passed the FCA in June 2015 and New York City Mayor Bill de Blasio signed the Ban the Box legislation into law during the same month. The FCA amends the New York City Human Rights Law (NYCHRL) to prohibit employers in the Big Apple from:
- Conducting criminal background checks on job applicants or inquiring about arrest or conviction records of job applicants until after a conditional offer of employment to applicants.
- Inquiring about the criminal history of job applicants on employment applications, during interviews, searching public records or databases, or using background checks containing criminal records before a conditional offer of employment to the applicant.
- Advertising or soliciting job offers with requirements regarding the arrest or conviction history of job applicants.
After a conditional offer of employment is extended to a job applicant, the FCA allows New York City employers to conduct criminal background checks on the job applicant. However, the FCA requires employers to comply with certain procedures before taking adverse action against an applicant:
- The employer must provide a written copy of the inquiry to the applicant in a manner to be determined by the NYC Commission on Human Rights (NYCCHR).
- The employer must perform an analysis of the applicant under Article 23-A of the New York Correction Law and provide a written copy of the analysis to the applicant in a manner to be determined by the NYCCHR. This analysis shall include but not be limited to supporting documents that formed the basis for an adverse action based on such analysis and the employer’s or employment agency’s reasons for taking adverse action against the applicant. (Update: See Fair Chance Act Notice.)
- After giving the applicant the inquiry and analysis in writing, the employer shall allow the applicant no less than three (3) business days to respond and hold the position open for the applicant during this time.
The FCA does not apply to employers following state, federal, or local laws that require criminal background checks for employment or bar employment based on criminal history. Individuals pursuing FCA claims may seek remedies available under the NYCHRL. The full text of the FCA is available here.
Ban the Box is a nationwide campaign by civil rights groups aimed at removing the box applicants must check on job applications if they have a criminal record. Currently, more than 100 cities and counties, 18 states, and companies such as Walmart, Target, Starbucks, and Home Depot have Ban the Box policies.
More Ban the Box Information from ESR
Employment Screening Resources® (ESR) – “The Background Check Authority®” – is a nationwide background check firm accredited by the National Association of Professional background Screeners (NABS). ESR offers a Ban the Box Information Page at www.esrcheck.com/Ban-the-Box/.
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