New York City “Ban the Box” FAQs – 2021 Update
Service : Background Screening
This Compliance Alert has been republished to include updates from the recent Fair Chance Act amendments passed in January 2021. These amendments become effective July 28, 2021.
1. Who does the law apply to?
The Fair Chance Act (“FCA”) applies to employers with four or more employees, and only when the position is in New York City. For small businesses, the owner her/himself counts. The four employees need not work in the same location, as long as one of them works in New York City.1 It generally does not apply to New York City residents applying for jobs outside the city, even if the company’s headquarters and HR team are based in New York City.
2. What is the effective date?
October 27, 2015. The Fair Chance Act was amended on January 11, 2021 by Int. 1314-A. Those provisions will become effective on or about July 28, 2021.
3. When is it permissible to ask an applicant about criminal records?
After extending a conditional offer of employment, the employer is permitted to inquire into an applicant’s pending arrest or conviction record.
4. Does the law affect when you can conduct a background check?
Yes. Background checks can only be conducted after a conditional offer of employment. In addition, employers must delay asking applicants for authorization to obtain a background check until after a conditional offer of employment is made.
5. Are there any “pre-adverse” notification requirements beyond those of the FCRA?
Yes. If, after evaluating the applicant according to Article 23-A, an employer wishes to decline employment because a direct relationship or unreasonable risk exists, it must follow the “Fair Chance Process”:
- Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history;
- Request from the applicant information relating to the relevant fair chance factors;
- Provide the applicant with a copy of the Article 23-A analysis using the Commission’s Fair Chance Notice; and
- Allow the applicant at least five business days, from the receipt of the inquiry and analysis, to respond to the employer’s concerns.
When an employer wishes to take adverse action based on an applicant or employee’s pending, open criminal charges, arrests, or accusations, or an employee’s convictions that occurred during employment, the FCA fair chance factors must be evaluated. The notification process is similar to the requirements above; however, the factors assessed and disclosed slightly differ. Please consult this white paper for NYC employers for a more detailed analysis on the fair chance factors.
The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an applicant has a criminal record, along with the date and time the employer accessed the information. The applicant must be able to see and challenge the same criminal history information relied on by the employer. Employers who hire consumer reporting agencies to conduct background checks can fulfill this obligation by supplying a copy of the CRA’s report on the applicant, provided the consumer report is the only information relied upon.
Pursuant to recent amendments, a conditional offer of employment can only be revoked based on 1) the results of a criminal background check, after the FCA factors have been assessed and followed; 2) the results of a medical exam permitted by the Americans with Disabilities Act, or 3) other information the employer could not reasonably have known before making the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material.
6. Are there any “adverse action” notification requirements beyond those of the FCRA?
Yes. After receiving additional information from an applicant, an employer must examine whether it changes its Article 23-A or FCA Factor analysis. If, after communicating with an applicant, the employer decides not to hire him or her, it must relay that decision to the applicant.
7. Are there any other additional notice/disclosure requirements?
8. Are there certain offenses I cannot inquire about?
Int. 1314-A provides significant additional protections for applicants. The amendment makes it unlawful for an employer to inquire about any “non-pending” criminal accusations or arrests, adjournments in contemplation of dismissal, youthful offender adjudications, or convictions sealed pursuant to certain sections of the criminal procedure law, when the inquiry would violate the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. §296.15. The amendments also prohibit an employer’s ability to ask about a non-criminal violation or offense or to consider the information in making an adverse employment decision.
9. Does the law allow employment applications to still include the criminal history question with a carve-out for this jurisdiction?
No. Employment applications for positions in New York City should not include a criminal history question or any statements regarding criminal history inquiries or background checks.
10. Does the law provide any exceptions?
The Act provides an exemption for and does not apply to any actions taken by an employer pursuant to any state, federal or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. Under the Act, a “federal” law includes any rules or regulations promulgated by a Self-Regulatory Organization (“SRO”) as defined by Sec. 3(a)(26) of the Securities Exchange Act of 1934. Thus, employers in the financial services industry are exempt from the FCA when complying with industry-specific rules and regulations promulgated by an SRO.
The Act also provides an exemption for police or peace officers, and for certain positions within the department of citywide administrative services.
The FCA exception for situations in which employment is barred based on criminal history applies only if the employer’s decision is compelled by law. If the employer’s choice is discretionary, then the FCA applies.
11. Does the law supersede or preempt any other law?
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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.
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