New York City Mayor De Blasio Signs Ban-the-Box Legislation

On June 29, 2015, Mayor Bill De Blasio signed into law the Fair Chance Act, which was passed earlier in the month by the New York City Council.  The law amends the New York City Human Rights Law (NYCHRL) to prohibit New York City employers with four or more employees from inquiring into or otherwise considering a job applicant’s criminal background history prior to making a conditional offer of employment.  The law effectively “bans the box” contained in job applications, which generally inquire into an applicant’s criminal history.

The law does not prevent an employer from asking about an applicant’s criminal history, but simply delays the inquiry until after a conditional job offer is made.  The term “inquiry” is defined broadly by the law and means “any question communicated to an applicant in writing or otherwise, or any searches of publicly available records of consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.”  After an employer extends a conditional offer of employment, and explains that employment is conditioned on the applicant’s responses to a criminal history inquiry or background check, the employer must do the following:

  1.  Provide a written copy of the inquiry or background check to the applicant in a manner still to be determined by the New York City Commission on Human Rights;
  2.  Analyze the job applicant’s responses or background results, together with the factors contained in Article 23-A of the New York State Corrections Law;
  3.  Provide the job applicant with a written report of the analysis in a manner still to be determined by the New York City Commission on Human Rights, as well as the reasons and supporting documentation for not employing the applicant; and
  4.  After providing the applicant with the written report, the employer must allow the applicant with a reasonable time to respond, which should be at least three business days, during which time the job position must remain open.

An exception to the law exists where federal, state or local laws require that criminal background checks are necessary for, or that a criminal history bars individuals from, a particular position.

The law will take effect on October 27, 2015, 120 days after it was signed by the mayor, at which time the New York City Commission on Human Rights will hopefully have issued guidance for complying with the new law’s requirements.