NYC Bans the Box and Becomes Latest Jurisdiction to Limit Criminal Background Checks

The bill was passed by the City Council overwhelmingly on June 11, 2015 with 45 yeas and 5 nays. By passing the Act, New York City joins 17 states and over 100 cities that have enacted similar legislation. The law will take effect on October 27, 2015, 120 days after the Act was signed into law.

The Act prohibits employers from inquiring about an applicant’s criminal conviction history until after the employer has extended a conditional offer of employment to the applicant. Thus, an employer may not ask any criminal history questions on an employment application or during a job interview and may not during such times search publicly available records or conduct background checks covered by the Fair Credit Reporting Act. Only after extending a conditional offer to the applicant may employers then inquire about an applicant’s criminal conviction history. In order to do so, however, the employer must: (1) provide a written copy of the background inquiry to the applicant; (2) perform an analysis under Article 23-A of the New York Correction Law, including documentation of such analysis and the reasons for any employment decision based on the analysis, which must be provided to the applicant; and (3) allow the applicant at least three days to respond to an adverse decision, while holding the position open for the applicant.

The Article 23-A analysis is what makes the New York City law rather unique relative to other Ban the Box laws. Article 23-A of the New York Correction Law states that employers may consider felony conviction record information only if the employer establishes: (1) a direct relationship between the previous criminal offenses and the specific employment sought; or (2) that the granting of employment would involve an unreasonable risk to property or the safety or welfare of specific individuals of the general public. Thus, for each specific job, an employer must conduct an analysis that includes the following specific considerations before ruling out an applicant based on his or her prior felony conviction: (1) the public policy of New York, which encourages the employment of persons previously convicted of criminal offenses; (2) the specific duties and responsibilities that are necessarily related to the employment sought or held by the applicant or employee; (3) the bearing, if any, that the criminal offense would have on an employee’s or applicant’s fitness or ability to perform job duties or responsibilities; (4) the time that has elapsed since the criminal offense; (5) the age of the person at the time he or she committed the criminal offense; (6) the seriousness of the criminal offense; (7) any information regarding rehabilitation and good conduct; and (8) the legitimate interest of the employer in protecting property, safety, and welfare. 

The Act imposes similar restrictions on licensing agencies, with exemptions for licensing activities in relation to explosives, pistols, handguns, rifles, shotguns, and other deadly weapons. The Act includes exemptions for public and private employers who are required by law to conduct criminal background checks, and for several City agencies including the Police Department, Fire Department, Department of Corrections and Department of Probation.

Another unique attribute of the Act is that it is incorporated into the New York City Human Rights Law. Thus, employers that violate the Act may be liable for compensatory damages (including back pay, front pay, and emotional distress damages), punitive damages, and attorneys’ fees and costs. In other words, an employer’s violation of the Act, whether that is making an unlawful pre-hire inquiry or failing to properly carry out its obligations under New York State Corrections Law Article 23-A—could lead to significant liability.  It is therefore important for employers to understand and carry out their obligations under the Act.