By: Francine Foner, Esq., and Ty Hyderally, Esq.
What is “Ban the Box”?
Since the late 1990s, 25 states in the United State have enacted the so-called “ban the box” legislation, meaning to remove the check box that asks if applicants have a criminal record on job application forms. Initially enacted in 2015, the Fair Chance Act (FCA) prohibits New York City private employers with at least four employees from inquiring about job applicants’ criminal conviction history before those applicants receive conditional offers of employment. The New York City Commission on Human Rights (NYCCHR) also promulgated a set of rules that went into effect on August 5, 2017, interpreting the FCA. Under these rules and regulations, when an employer makes a conditional offer to an applicant, the FCA requires it to analyze the applicant’s criminal history using the eight factors codified in N.Y. Correction Law Article 23-A, make an individualized assessment in writing should the employer decide to withdraw the offer, and give the applicant at least three business days to respond to the written analysis.
New York Passes Additional Amendments in 2021
On July 29, 2021, the New York City Council passed substantial amendments to the FCA. First, the amendments will expand protections from job applicants to also cover current employees and independent contractors, prior to an employer taking an adverse employment action. Second, employers now must also treat pending criminal accusations and arrests differently from prior convictions. Employers may never inquire about an applicant’s or employee’s pending non-convictions, cases adjourned in contemplation of dismissal, youthful offenses, non-criminal offenses or violations, or sealed cases; they may only consider open or pending cases, misdemeanor convictions, felony convictions, and driving infractions. Lastly, the amendments also expand the four-step analysis an employer must conduct prior to rescinding a job offer or taking an adverse employment action against a current employee. For example, applicants and employees now have longer time to respond to employers’ written analysis of their criminal background check results. Also, in addition to the eight-factor test, employers must analyze the additional factors now set forth in the NYCCHR’s Fair Chance Evaluation Form, including any additional information produced by the applicant or employee, or produced on their behalf, in regard to their rehabilitation or good conduct.
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