2021Ban the Box
Ban the Box

Written By ESR News Blog Editor Thomas Ahearn

Amendments enacted by the New York City Council to the City’s “Ban the Box” law known as the Fair Chance Act (FCA) to expand protections already provided to job applicants to include employees and prohibit discrimination based on arrest records, pending criminal accusations, or criminal convictions will take effect on July 29, 2021.

In January 2021, the New York City Council amended the FCA to extend employment protections for individuals with pending adjournments in contemplation of dismissal (ACDs) and convictions for violations prior to sealing by adding both to the category of dispositions that may not be considered for employment-related decisions.

The law also prohibits discrimination in licensing against applicants with convictions for violations, even prior to sealing, and would clarify protections for applicants and employees with pending criminal cases by requiring an employer to make an individualized assessment of the relationship between the charged conduct and the job.

The New York City Council revised the FCA – which was enacted in 2015 to prohibit discrimination based on arrest records or criminal convictions – to identify the specific circumstances upon which an employer can withdraw a conditional offer of employment. An employer can only revoke an offer based on one of three factors:

  • The results of a criminal background check after the FCA process has been followed,
  • The results of a medical exam permitted by the Americans with Disabilities Act (ADA), or
  • Other information that the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.

The amended FCA requires that employers who revoke a conditional job offer demonstrate that they would not have made the offer regardless of the applicant’s criminal history. The revised Act also provides numerous additional protections for ex-offenders, including factors of the New York Corrections Law, Article 23-A.

As of July 2021, 36 states and more than 150 cities and counties have Ban the Box laws, according to the National Employment Law Project (NELP). Other major cities besides New York City to pass Ban the Box laws include Austin, Baltimore, Buffalo, Chicago, Los Angeles, Philadelphia, San Francisco, Seattle, and St. Louis.

“Ban the Box” laws and Second Chance Programs that help ex-offenders in the United States – an estimated 70 million people – find work will continue to evolve, according to leading global background check firm Employment Screening Resources® (ESR), which compiled the “ESR Top Ten Background Check Trends” for 2021.

Employment Screening Resources® (ESR) – which was named the #1 screening firm in 2020 by HRO Today – offers a white paper on “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce,” an “ESR Ban the Box Resource Guide,” and a Ban the Box Resource Page. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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