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New Law: NYC Prohibits Criminal Record Inquiries Prior to Conditional Offer of Employment

The New York City Council approved the “Fair Chance Act” law on June 10, 2015, which was subsequently signed into law by Mayor de Blasio on June 29, 2015. The law prohibits public and private sector employers from inquiring about a job applicant’s criminal history until after a conditional offer of employment has been extended. The law prohibits not only verbal and written inquiries of the applicant about past criminal history, but also prohibits an employer from obtaining information using publicly available sources (background checks).

The reasoning behind the approval of the Fair Chance Act is to force employers to evaluate job applicants based on their resume, interviews, and qualifications for the job, rather than their criminal record. It affords applicants with previous low-level arrests and other minor violations a fair chance at obtaining employment. Upon signing the Fair Chance Act into law, Mayor de Blasio said “Today, we ‘ban the box’ in New York City. This bill opens the door to jobs for New Yorkers who have already paid their debt to society, rather than condemning them to a grim economic future. Now, all applicants will get a fair shot at the opportunities that can lead them on a pathway to success.”

Employers must now follow a three-step process when they make inquiries into an applicant’s criminal history after a conditional offer is extended. First, the employer is required to provide the applicant with a written copy of the inquiry which needs to comply with the New York City Human Rights Law. Second, if an employer revokes a conditional offer, the employer is required to submit to the applicant a written copy of its analysis of the criminal history along with an explanation of the revocation of the offer. Lastly, the employer must keep the position open while allowing the applicant a three day period to respond to the revocation of the offer.

It is critical that employers now implement policies and procedures in order to be in compliance with the Fair Chance Act.

Timothy Schroeder is a Not-for-Profit Services Group Manager with expertise in audits of financial statements and employee benefit plans, including the preparation of Form 990.

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