NYC Commission on Human Rights Issues Interpretative Guidance on New York City’s Ban-the-Box Law

In our July 6, 2015 Blog, New York City Mayor De Blasio Signs Ban-the-Box Legislation, we wrote about New York City’s enactment of the Fair Chance Act (FCA), which amends the New York City Human Rights Law (NYCHRL) to prohibit most New York City employers from inquiring into or otherwise considering an applicant’s criminal history prior to making a conditional offer of employment.   Last week, on November 5, 2015, the New York City Commission on Human Rights (NYCCHR) published its Interpretative Enforcement Guidance on the FCA, which purports to clarify the Act’s requirements and prohibitions.  In addition, the NYCCHR has prepared forms and notices for use by employers in complying with the FCA’s mandates.

The Interpretative Enforcement Guidance  reaffirms that the FCA does not prevent employers from inquiring into an applicant’s criminal history where state, federal or local law requires criminal background checks for a position.  It also clarifies the meaning of “conditional offer of employment.”  For example, a conditional offer of employment for temporary/help firms is “the offer to be placed in a pool of applicants from which the applicant may be sent to temporary positions.”

Importantly, the Interpretative Enforcement Guidance sets forth a list of separate per se violations of the FCA:

1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any  limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”

2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the NYCHRL:

a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;
b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;
c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis,  to allow the applicant to respond.

4. Taking an adverse employment action because of an applicant’s non-conviction.

(See Interpretative Enforcement Guidance at 4).

The Guidance further explains the application of the “Article 23-A” analysis, which an employer must undertake if, following a conditional offer, it learns of an employee’s criminal record and seeks to take adverse action.  The Article 23-A analysis must be shared with the affected employee pursuant to The Fair Chance Process, which also requires an employer to provide “a written copy of any inquiry it conducted into the applicant’s criminal history,” as well as allow the employee at least 3 business days to respond to both the inquiry and the analysis.

Any measures taken by employers to comply with the FCA, which took effect on October 27, 2015, must be revisited to ensure compliance with the FCA’s requirements as explained and construed by the NYCCHR’s Interpretative Enforcement Guidance.

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