New York City Restricts Use Of Criminal Records In Hiring Giving Job Applicants a “Fair Chance” at Employment

As expected, on June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (Intro. No. 318-A), making New York City the latest jurisdiction to prohibit employers from conducting pre-offer criminal background checks when hiring. The new law prohibits private employers who operate in New York City with four or more employees, from inquiring about applicants’ past criminal convictions until a conditional job offer has been made. After a conditional offer, an employer can commence a criminal background check and make inquiries related to criminal history. If a company decides to withdraw the offer after learning of the applicant’s criminal history, it needs to give the applicant a written explanation of the decision. The employer must conduct an individualized evaluation of any criminal conviction it discovers pursuant to the factors under existing New York State law. Further, the employer needs to hold the position open for three days to allow the applicant an opportunity to respond and provide any proof of rehabilitation. The Act also includes individual independent contractors performing work for the employer, if those individuals do not themselves have employees. Moreover, employers must not specify in job advertisements or other written statements that any position entails restrictions based on criminal records, unless expressly allowed by law (e.g., for law enforcement agencies).

Under the new law, the NYC Human Rights Commission is charged with enforcing its key protections. The Fair Chance Act does not affect federal and state laws that allow employers in certain industries to consider applicants’ criminal histories, including law enforcement, positions of public trust, and jobs that entail working with children.

The new law takes effect on October 27, 2015. Employers in New York City should begin consulting with legal counsel to ensure that their hiring process forms, job applications and hiring policies are in compliance with the new law. Legal compliance should also include educating managers, supervisors and recruiting personnel regarding these new standards to ensure they are communicated throughout the organization.

For more information regarding the Fair Chance Act and to learn how your business can implement best practices when hiring and conducting background checks, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.