Tag Archives: New York

New York City Fair Chance Act Notice Published by NYC Commission on Human Rights


Written By ESR News Blog Editor Thomas Ahearn

Effective October 27, 2015, the Fair Chance Act (FCA) amends the New York City Human Rights Law (NYCHRL) to prohibit most employers in the city from inquiring about criminal history of job applicants until after a conditional offer of employment is extended. To help city employers comply with the FCA, the NYC Commission on Human Rights (NYCCHR) published a “Fair Chance Act Notice” that employers can use to perform an analysis of applicants under Article 23-A of the New York Correction Law. Continue reading

New York City Employers Must Ban the Box Starting October 27


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. Continue reading

New York City Businesses Must Comply with New Law Banning Credit Checks by Employers


Written By ESR News Blog Editor Thomas Ahearn

With New York City passing the nation’s strongest ban on employment credit checks that took effect on September 3, 2015, businesses in the Big Apple need all the help they can get to comply with this new law that strictly prohibits most employers from using credit history to decide whether to hire, fire, or promote an individual. Continue reading

New York City Council Passes Ban the Box Bill for Private Sector


Written By ESR News Blog Editor Thomas Ahearn

The New York City Council has passed a “Ban the Box” bill – Introduction 318-A – Fair Chance Act – that will prevent many private sector employers in the city from asking job applicants if they have a criminal record until after a conditional job offer is made, according to an Associated Press (AP) report on myfoxny.com. AP also reports New York City Mayor Bill de Blasio has signaled support and is expected to sign the Ban the Box bill into law (Update: Mayor de Blasio Signs “Fair Chance Act”). Continue reading

New York City to Bar Employers from Viewing Credit Reports of Job Seekers


Written By ESR News Blog Editor Thomas Ahearn

The New York City Council is expected to pass a bill – “Stop Credit Discrimination in Employment Act” (Int. No. 261-A) – that will bar employers from viewing the credit reports of job seekers and also prohibit them from asking about credit scores in job interviews, according to an exclusive report from the New York Daily News. (UPDATE: The New York City Council passed a bill that makes it illegal to request or use a job applicant’s credit history in making a hiring decision and bars most employers from checking a job candidate’s credit record. Read the full story.) Continue reading

Ban the Box Takes Effect in Syracuse NY on March 22

Ban The Box

Written By ESR News Blog Editor Thomas Ahearn

A “Ban the Box” policy that eliminates the box on initial job applications that applicants are asked to check if they have criminal records will take effect in Syracuse, New York on Sunday, March 22, 2015, according to a report from The Daily Orange website. Continue reading

New York City May Ban Credit Checks by Employers

Credit Report Blogs

Written By ESR News Blog Editor Thomas Ahearn

New York City Council members are considering legislation – Introductory Bill Number 261 (“Int. No. 261”) – that would amend the administrative code of the city “in relation to prohibiting discrimination based on one’s consumer credit history” and prevent employers from using credit checks in employment decisions. More information about the bill is available here: Int. No. 261. Continue reading

Rochester NY Votes to Ban the Box

Written By Thomas Ahearn

Ban the BoxThe City Council of Rochester, New York has unanimously voted to “Ban the Box” and prohibit public and private employers in the city with four or more employees from asking about the criminal history of job seekers on applications. A report in the Rochester Democrat Chronicle about the Ban the Box law, which takes effect in 180 days, is available at http://www.democratandchronicle.com/story/news/2014/05/20/city-council-votes-ban-box/9356071/. Continue reading

New York State AG Secures Agreements with Background Check Firms

Written By Thomas Ahearn

ESR News BlogNew York State Attorney General Eric T. Schneiderman has announced his office has secured agreements with four large background check firms that will prohibit them “from automatically disqualifying applicants with criminal convictions and require the agencies to defer hiring decisions to employers who must conduct an individualized consideration of candidates in accordance with New York State law.” A press release about the agreements is available at http://www.ag.ny.gov/press-release/ag-schneiderman-announces-agreements-background-check-agencies-end-illegal-hiring. (Español) Continue reading

New York Passes Four New Rules Affecting Background Checks to Help Ex-Offenders Have a Second Chance

Effective February 1, 2009, three (3) new rules go into effect in the State of New York designed to give ex-offenders a second chance of entering the workforce.  These rules affect both employers and background firms.  A fourth law, effective September, 2008, gives employers some additional protections against lawsuits for negligent hiring if they can show that an applicant with a criminal record was hired after good faith consideration of the rules affecting the use of criminal convictions.

Under existing New York law (Correctional Law Article 23-A), an employer is required to consider and balance various factors where an applicant has a criminal record (unless, of course, there is a statute that prohibits the employment of a person with certain convictions).  The factors are set out in New York Corrections law section 753 found at: https://www.labor.ny.gov/formsdocs/wp/correction-law-article-23a.pdf.

The factors enumerated in section 753 of Article 23-A include such things as:

  1. The duties of the job
  2. The relationship between the criminal offense and the job
  3. How long ago the conviction occurred
  4. The applicant’s age at time of the crime
  5. How serious the offense was
  6. Information produced regarding the applicant’s rehabilitation and good conduct.

In passing some of these laws, the New York legislature cited a 2007 study that found that New York employees were largely not familiar with New York laws on utilizing past convictions, or that a criminal record poses a significant barrier to employment.

In response, the three new laws require the following effective February 1, 2009:

1.    Provide a copy of Article 23-A:  An employer must provide a copy of Article 23-A to all job applicants undergoing a background check.  An employer may want to provide that notice at the same time the applicant signs a consent form and receives a disclosure form.  A technical reading of the statute may suggest such a requirement is limited only to a situation where an employer is requesting a special type of background report called an ‘Investigative Consumer Report,’  where information is obtained through interviews.  However, the legislature in New York, based upon the legislative history, clearly intended this to apply to all consumer reports.  As a best practice, employers should consider providing this notice regardless of the type of background report being conducted. 

2.    Posting a copy of Article 23-A:  An employer must also post a copy of Article 23-A in ‘a place accessible to his or her employees and in a visually conspicuous manner.’  Employers can simply download the copy of 23-A linked in this article.  The required notice will likely be included in commercial labor posters that come out in 2009 for the state of New York.

3.    Provide additional copy of Article 23-A if a criminal record is found:  Where a background report on an applicant contains information on a criminal conviction, the employer must again provide a copy of Article 23-A to the applicant. 

As part of the legislative approach, New York employers that follow Article 23-A now have increased protection from lawsuits for negligent hiring. This protection applies where an employer hires someone that has a conviction history but the employer has made a reasonable and good faith determination that, due to the factors in Article 23-A, the applicant should still be hired. In that situation, there is a ‘rebuttable presumption’ that evidence of the employee’s past criminal record cannot be admitted into evidence and be used against the employer. 

A ‘rebuttable presumption’ is an assumption of fact accepted by the court until disproved by the other side.  For example, evidence of the employee’s past criminal record can only be used in a negligent hiring case if the plaintiff can overcome the presumption by showing that there was not a reasonable and good faith determination by the employer under article 23-A.  This new protection can potentially provide employers that do hire applicants with a criminal record protection from a lawsuit as long as the employer can document  that the employer discovered the criminal record and then applied the criteria in Article 23-A in a reasonable and good faith manner.

ESR clients will receive a detailed memorandum and training in January on the details of these new laws in New York as well as some other ‘only in New York’ rules. This also raises issues on how employers that are not in New York need to deal with New York applicants or applicants that formerly lived in New York.