We recently discussed how New York State bans employment discrimination based on a prospective employee's criminal record. New York City has adopted its own local ordinance, known as the “Fair Chance Act,” that further restricts a private employer's ability to looking into a job applicant's criminal record. The New York City Commission on Human Rights, which is charged with enforcing the Fair Chance Act, recently issued final regulations that apply to all private employers in the five boroughs with at least four employees.
Per Se Violations
The regulations, which took effect on August 5, establish a number of “per se” violations. These are actions that are illegal under the Fair Chance Act even if no “adverse employment action” was taken or any job applicant suffered an injury. Among the acts that now constitute a per se violation:
- An employer cannot solicit or advertise a job that includes “any limitation or specification” regarding criminal history. For example, it is a per se violation to post a help wanted ad on Craigslist that says an applicant “must have a clean record” or states that a “background check is required.”
- An employer cannot use a job application that requires an applicant to consent to a criminal background check prior to making a “conditional offer of employment.” Nor can the employer use a “boilerplate” application–i.e., one that is for multiple jurisdictions–that “requests or refers to criminal history.”
- An employer cannot require employees or potential employees to disclose an arrest that “resulted in a non-conviction.”
Post-Offer Consideration of Criminal History
Only after an employer makes a “conditional offer” can it “make inquiries” with respect to an applicant’s prior criminal convictions. Under no circumstances, however, can the employer ask about arrests or criminal proceedings that did not end in a conviction. Even if a background check does reveal a criminal history, the employer cannot simply rescind a conditional offer on that basis alone. Instead, the law requires the employer to seek additional information from the employee about the circumstances surrounding their conviction.
The employer must then perform an “analysis” before it can rescind the job offer. The factors that must be considered include the time elapsed since the criminal offense, the seriousness of the conviction, and the applicant's age at the time of the crime. If the employer determines that there is a “direct relationship” between the applicant's criminal history and his or her ability to perform the job, or that hiring the applicant would present an “unreasonable risk” to the public, it must notify the applicant of its “concerns” in writing and offer a chance to respond.
Has Your Criminal Record Been Used Against You?
The new regulations clearly put the onus on employers to justify their decision to review or consider a job applicant's criminal history. As a matter of public policy, the state and city want people who have previously run into trouble with the law and paid their debt to society to have a second chance. If you have been unfairly denied employment because of your criminal background, you should speak with a qualified New York employment law attorney. Contact the Law Offices of Mahir S. Nisar in New York City today.