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The New York City Council passed a new law prohibiting public- and private-sector employers from inquiring about a job applicant's criminal record history before making a conditional offer of employment. Mayor Bill de Blasio is expected to sign the new law, passed by the council on June 10, 2015, and known as the Fair Chance Act. The law would take effect 120 days from the mayor’s approval.
“This goes beyond ‘banning the box,’ ” Daniel Saperstein, an attorney in the labor and employment law department at Proskauer, told SHRM Online. “There is a growing movement at the state and local level to remove the check box on applications,” he noted. But in addition to banning the box, “this law forbids any inquiry into an applicant’s criminal history before a conditional offer of employment is made.”
New York state already bars employers from rejecting a job applicant on account of his or her conviction history unless the conviction is related to the applicant's fitness to perform the job or suggests an unreasonable risk to property or public safety, according to Michael Volpe, co-head of the labor and employment practice in New York for law firm Venable LLP. Now, however, he said, “New York City employers may find themselves in hot water for merely asking about criminal history within their job applications.”
Three-Step Procedure Required
The law applies to most private employers with four or more employees who work in New York City, but it does exclude those employers who are required by law to run criminal background checks, Saperstein said.
If the measure is signed into law, covered employers would be required to follow a three-step procedure for inquiries about an applicant's criminal history. An inquiry into arrest or conviction history is defined as a written or oral question issued to the applicant, a search of public records or performance of a background check.
*First, the employer must issue a written copy of the inquiry in a manner to be determined by the New York City Commission on Human Rights.
*Second, before a conditional offer of employment is revoked, an employer must provide the applicant a written copy of its analysis of the criminal history, including the reasons it revoked the conditional job offer and the supporting documents that formed the basis of the employer's decision.
*Finally, the employer must allow the applicant a reasonable amount of time—no less than three business days—to respond to the revocation of the job offer, during which time the employer must hold the position open for the applicant.
This required procedure “creates more paperwork for an employer who seeks to take adverse action on the basis of an applicant’s criminal history,” Saperstein noted.
‘Mixed Motive’ Question Eliminated
The Fair Chance Act “raises the bar” for whether an employer has properly considered an applicant's conviction record when revoking a conditional job offer, Volpe said. Prior to the act, employers could review an applicant's criminal history but still reject the application for reasons unrelated to the applicant's criminal conviction. As long as the employer could prove it would have rejected the applicant regardless of his or her criminal conviction, the employer would have a strong defense against a discrimination lawsuit based upon the applicant's conviction.
Now, under the Fair Chance Act, employers must issue a conditional job offer before even inquiring about an applicant's criminal history. This requirement eliminates the "mixed motive" question previously relevant to conviction discrimination lawsuits, because the only factor left for consideration when revoking the conditional job offer will be the applicant's criminal history, Volpe said.
Law Provides Private Right of Action
Unlike similar laws in many other jurisdictions, the New York City law would provide a private right of action. The law would add improper consideration of an applicant's criminal history to the current list of discriminatory employment practices prohibited under the New York City Administrative Code, Saperstein said. An applicant claiming that an employer violated the Fair Chance Act would be able to file an administrative claim or lawsuit in which he or she could seek compensatory damages, punitive damages and reasonable attorneys' fees. A plaintiff could also seek injunctive relief in the form of an order requiring that he or she be hired. “Even worse for large employers, these types of claims [could] often lend themselves to costly class actions because of the relatively high volume of applications received,” Volpe said.
What Should Employers Do Now?
Covered employers should take the immediate step of removing any questions on their job applications regarding criminal history, Saperstein said. Employers should also train management and other personnel who conduct job interviews to avoid asking questions regarding arrest or conviction records.
Once the law takes effect, employers will need to further ensure that their written criminal history inquiries comply with the commission's requirements, Volpe noted.
“As with most new laws that impose additional requirements on employers, one of the best ways for employers to minimize legal risk is to consult with employment attorneys regarding their internal forms and procedures,” he concluded.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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