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In This Issue
October, 2015
MOSKOWITZ & BOOK MONTHLY UPDATE

NYC Enacts Fair Chance Act Limiting Employers' Ability to Check Criminal Background of Job Applicants
   
New York City has become the latest municipality to enact what is commonly known as a "ban the box" law. This law requires employers and employment agencies to first make a conditional job offer before inquiring into the criminal history of a job applicant or conducting any criminal history search for an applicant.
 
The Fair Chance Act, which goes into effect on October 27, 2015, does not require that employers hire people with criminal records, nor does it prevent employers from running background checks. It just delays the background check until applicants can demonstrate their qualifications. However, employers who are legally prohibited from hiring people with certain criminal convictions must still refuse to hire someone with those convictions.  
 
Prior to taking any adverse action based on the applicant's criminal record, the employer or employment agency must:
  • Provide a written copy of the inquiry to the applicant in a manner to be determined by the New York City Commission of Human Rights.
  •  Perform an analysis of the applicant under article 23-A of the Correction Law and provide a written copy of the analysis to the applicant in a manner that is to be determined by the Commission, which shall include any supporting documents that formed the basis for an adverse action and the employer's or employment agency's reasons for taking adverse action.
     
Article 23-A of the Correction Law prohibits an employer from making an adverse decision concerning an applicant on the basis of a prior conviction unless there is a direct relationship between the criminal conduct and the specific employment sought, or the employment would create an unreasonable risk to the property, safety and welfare of certain individuals or the general public.
    • In evaluating whether the applicant may be denied employment based on the above criteria, an employer must consider 8 factors:
    • the time elapsed since the conviction;
    • the age of the applicant at the time of the offense;
    • any evidence of rehabilitation and good conduct;
    • the seriousness of the conviction;
    • the specific duties and responsibilities necessarily related to the employment sought;
    • the bearing, if any, the offense has on the applicant's fitness or ability to perform the job duties/responsibilities;
    • the public policy of New York to encourage the employment of individuals with a criminal record; and
    • the legitimate interest of the employer in protecting the property, safety and welfare of specific individuals or the general public.
  • After giving the applicant the inquiry and analysis in writing, the employer or employment agency must allow the applicant a reasonable time to respond, which shall be no less than three business days and must hold the position open during this time period.
The Commission is currently hosting training sessions for employers seeking to understand their obligations. For more information go to: http://www.nyc.gov/html/cchr/html/trainings/training-cred-hist.shtml or contact Randi Melnick, rmelnick@mb-llp.com.
 
 

 


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