New York City’s ‘Ban-the-Box’ Amendments Are in Effect

Allen Smith, J.D. By Allen Smith, J.D. August 3, 2021
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New York City skyline

​New York City employees, independent contractors and freelancers are now protected by the city's Fair Chance Act, which forbids adverse employment action against workers based on criminal convictions that aren't related to the worker's job or don't threaten the company's safety.

The law already banned boxes on initial job applications seeking information about whether an applicant had been convicted of a crime, a prohibition that gives people with criminal histories a fair chance at being hired. In addition to expanding this protection for current workers, freelancers and independent contractors—through amendments that took effect July 29—the law extends to arrests, and New York City employers must now use a two-step background check process.

A "ban-the-box" law will take effect nationally for federal contractors in December. There are also efforts to pass such legislation to apply to the nation's private-sector employers, regardless of whether they are federal contractors.

We've gathered articles on the news from SHRM Online and other outlets.

Two-Step Process

New York City's law requires that an employer first evaluate an applicant's noncriminal information, such as education background and employment references. This must happen before the employer extends a conditional job offer. Only after this first step may a New York City business request, receive and evaluate the applicant's criminal history. The New York City Commission on Human Rights encourages employers to use terms such as "consumer report" rather than "background check" in an authorization notice used prior to a conditional job offer.

(Lexology)

Coverage of Current Employees

The New York City Fair Chance Act amendments provide protections to current employees in connection with convictions arising during employment. The original act applied only to job applicants. Under the amendments, an employer can't take adverse employment action against an employee based on a conviction unless the employer determines—after reviewing "fair chance factors"—that there is a direct relationship between the conviction and the job or that continuing employment would pose a safety risk.

(The National Law Review)

Federal Fair Chance Act Takes Effect in December

The Federal Fair Chance to Compete for Jobs Act of 2019, which takes effect Dec. 20, prohibits federal contractors and government agencies from requesting or seeking criminal-history information about an applicant for a position before extending a conditional job offer. The law does not preclude pre-offer inquiries when criminal background checks are required by law.

(Kauff McGuire & Margolis)

Other Federal Fair Chance Act Exceptions

The Federal Fair Chance Act also provides two other exceptions to the ban on seeking criminal-history information before extending a conditional job offer:

  • If the position would require access to classified information or involve sensitive law enforcement or national security duties.
  • If the position is identified as excepted by the administrator of general services or, in the case of defense contracts, by the secretary of defense.

(JD Supra)

Workforce Justice Act

Introduced in March, the proposed Workforce Justice Act would give states three years to remove from private-sector employment applications questions that ask job seekers to disclose criminal history. The aim of the proposal is to give job applicants with criminal records a better chance at competing in the labor market. Studies show that people with criminal histories face high unemployment rates and are at risk for recidivism. Washington, D.C., 36 states and more than 150 cities and counties have adopted ban-the-box policies, according to the National Employment Law Project. Fourteen states and 20 cities and counties have extended these policies to private employment.

(SHRM Online)

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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