New York City has passed legislation significantly expanding its ban-the-box law, the New York City Fair Chance Act. The amendment to the law increases protections for job applicants with criminal histories and adds similar protections for employees. The amendment to the law becomes effective on July 28, 2021 and will require employers in NYC, that perform criminal history inquiries into applicants or employees, to modify their review processes for such inquiries.
Currently, the Fair Chance Act applies only to applicants for employment, not current employees of a business. The Fair Chance Act prohibits employers from inquiring into an applicant’s conviction history until after a conditional offer of employment has been made. The Fair Chance Act also requires employers to conduct an individualized assessment of the impact of an applicant’s conviction history (applying eight statutorily required factors) before revoking a conditional offer. A conditional offer may be revoked only if the employer concludes, based upon the individualized assessment, that the applicant’s conviction history either (1) directly relates to the job applied for, or (2) employment of the applicant creates an undue risk to property, persons, or the public. Employers are required to provide an applicant with a notice and written analysis of the impact of the applicant’s criminal history on the job applied for, and allow the applicant at least three days to respond, before withdrawing a conditional offer. Under existing law, an individualized assessment is not required to withdraw an offer based upon an open, pending arrest, criminal charge, or accusation.
The expanded law will prohibit employers from inquiring into “non-pending” arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or sealed offenses. Additionally, employers will have to perform an individualized assessment before taking an adverse employment action against an employee based upon an arrest or criminal accusation, and not just criminal convictions.
The amendment also expands the Fair Chance Act’s protections to cover employees who are arrested or convicted after being hired. In such instances, employers will need to make a similar individualized assessment, and provide written notice to an employee before taking an adverse action based upon an arrest or conviction.
These amendments to the Fair Chance Act become effective on July 28, 2021, giving NYC employers time to update their hiring and disciplinary practices, if necessary, to comply with the law. Employers in NYC that inquire into criminal histories as part of their hiring process, should consult with experienced employment counsel to ensure compliance with the expanded law.
If you have any questions about your business’s hiring practices, please contact us at (201) 345-5412 / (646) 503-5358 or through our online scheduling system to schedule a complimentary consultation.