Ban-The-Box Law Takes Effect

Written by Daniel W. Morris

Earlier this year, we informed you that New York City had approved legislation making it unlawful for an employer to make any inquiry or statement related to an applicant's pending arrest or criminal conviction record—or conduct a criminal background check—until after the employer had extended a conditional offer of employment. That law goes into effect on October 27, 2015. As of the effective date, New York City employers will need to wait until after a conditional offer of employment has been extended to ask about the applicant's arrest or conviction record.

The law also requires an employer to take specific actions when it intends to take an adverse employment action based on an inquiry into an applicant's arrest or conviction record. Before doing so, the employer must:

  • provide the applicant with a written copy of the inquiry;
  • provide the applicant with a written copy of the analysis required by Article 23-A of the New York Correction Law, which must include the employer's reasons for taking an adverse employment action against the applicant; and
  • hold the applicant's position open for at least three business days to provide the applicant an opportunity to respond to the written analysis.

These obligations are in addition to the requirements of the state and federal fair credit reporting acts.

The New York City Commission on Civil Rights has indicated that it will provide guidance on the form that the written inquiry and analysis must take, but it has not done so to date. The bill also prohibits an employer from including in any job postings language that "expresses, directly or indirectly, any limitation, or specification in employment based on a person's arrest or criminal conviction."

The bill provides some exceptions. The exceptions include employers that are required to conduct criminal background checks by any federal, state, or local laws and employer that are barred from hiring applicants with a criminal history by federal, state, or local law.

New York City employers that have not already done so should review their hiring practices to ensure compliance with the law and prepare to make any changes to their hiring practices that the new law will dictate.

If you have questions about this update or how to integrate these anticipated changes into your employment practices, please contact the author of this article or your Clifton Budd & DeMaria attorney.

About the Author
Daniel W. Morris
Partner
Daniel W. Morris serves as Partner at Clifton Budd & DeMaria, LLP. He focuses his practice on employment litigation in...
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