Pre-Employment Criminal Checks

Banned in New York City!

On November 5, 2015, the New York City Commission on Human Rights released an
Interpretative Enforcement Guidance regarding NYC’s Fair Chance Act (FCA). The FCA, which
became effective on October 27, 2015, imposes obligations on covered employers including a
“ban-the-box” prohibition (meaning an employment application cannot ask if an applicant has a
criminal record). In short, the FCA makes it illegal for most employers in New York City to ask
about the criminal record of job applicants before making a job offer. This means ads,
applications, and interview questions cannot include inquiries into an applicant’s criminal record.
This allows the applicant to be judged on his or her qualifications.

The Guidance expounds at length on protections that ex-offenders enjoy in New York City
throughout the hiring process (and even during employment, since the Guidance defines the term
“applicant” to include both prospective and existing employees). Covered employers,
particularly those with one hiring process used in multiple jurisdictions, including an on-line
applicant tracking system or ATS, will want to ensure they closely review the Guidance to
identify measures needed to fortify compliance with the FCA.

If, after a job offer, an employer wants to revoke the offer based on the existence of criminal
record, the employer must explain why using a “Fair Chance Notice” (see link below), provide a
copy of any background check conducted by the employer or third-party vendor, and give the
applicant three (3) business days to respond. NYC has a form which allows the employer to inform the worker of the situation and allows an opportunity for the worker to provide additional information.

Employers must also provide the applicant with a copy of the criminal record information that
the employer relied on. An employer that used a consumer reporting agency to conduct the
background check must provide a copy of the report; an employer that relied on public records or
an Internet search must provide a copy of those documents.

Click here to for NYC Commission on Human Rights Interpretative Enforcement Guide.