On June 30, 2015, Mayor Bill De Blasio signed into law the Fair Chance Act, a “Ban the Box” law that prohibits private employers in New York City from inquiring about applicants’ past criminal convictions until a conditional offer of employment has been made. Under the Fair Chance Act (the “Act”) an employer may ask about an applicant’s criminal history and conduct a criminal background check only after extending the conditional offer. If the employer then withdraws the offer, it must explain its decision to the applicant in writing and hold the position open for three (3) business days so that the applicant can respond.

The measure passed the New York City Council on June 10 by a vote of 45-5 and will go into effect October 27, 2015. The Act comes shortly after New York City prohibited employers from using credit checks in making employment decisions.

The Act prohibits employers from asking such questions on a written application, in an interview, or otherwise searching public records or consumer reports that contain criminal background information. After the conditional offer, employers who obtain criminal background information about the applicant and must comply with a detailed notice procedure before taking adverse action based upon the information. The employer must:

1. Provide a written copy of the relevant inquiry to the job applicant (in a form to be determined by the New York City Commission on Human Rights);

2. Perform the analysis required by New York State Correction Law Article 23-A to determine whether there is a direct relationship between the prior criminal history and the position.

3. Provide a written copy of the multi-factor Article 23-A analysis that the employer undertook. Further, such copy must state the reasons for the decision to withdraw the conditional offer and provide any supporting documentation.

4. Hold the position open for not less than three business days after giving the applicant the inquiry and analysis so that the applicant can respond with additional or mitigating information.
The law contains several exemptions. For example, it does not apply to positions where federal, state or local laws require criminal background checks, or to positions where a criminal conviction precludes employment.  Additionally, there is a small business exemption as the Act applies to all New York City employers with four or more employees (either inside and/or outside of the city).
The Act provides that it is enforceable against private employers through an administrative action or through a private right of action. Thus, aggrieved individuals will be able to file a complaint with the Commission (with a one-year statute of limitations) or file an action directly in court (with a three-year statute of limitations). Remedies for successful plaintiffs can include back pay, reinstatement or other equitable relief, compensatory and punitive damages, and attorneys’ fees and costs.

Under the Act, employers are still permitted continue to inquire into criminal convictions and/or require criminal background checks for prospective employees, but they are now restricted as to the timing of such inquiries and background checks and required to follow the specific procedures aforementioned prior to taking adverse action.

Credit; National Association of Professional Background Screener’s