Rules Interpreting NYC “Ban the Box” Law Take Effect on August 5, 2017

Earlier this year, the New York City Commission on Human Rights (the “Commission,” or “NYCCHR”) promulgated a set of rules (the “Rules,” available here) relating to employers’ duties under the Fair Chance Act (the “FCA,” or the “Act”). The Act, which is more commonly known as New York City’s “Ban the Box” legislation, prohibits employers from inquiring about job applicants’ criminal conviction history before those applicants receive conditional offers of employment. While the Act itself has been in effect since 2015, the Rules will take effect on August 5, 2017. Employers covered by the Act, which includes out-of-state employers who publish postings for job openings in New York City, are well advised to review their practices concerning criminal background checks to ensure they are in compliance with the Rules. Summary of the Act’s Key Provisions As summarized in our prior client alert (available here), the FCA applies to employers with employees in New York City unless those employers are required to conduct criminal background searches by local, state or federal law or statute, or by the rules of a financial self-regulatory organization (such as the SEC or FINRA). Also excluded from the Act’s requirements are employers hiring for positions within law enforcement agencies. The Act prohibits covered employers from inquiring about applicants’ criminal conviction histories prior to the extension of a conditional offer of employment. This prohibition extends to general announcements in job postings, inquiries on job application forms, and questions during the interview process. The FCA also sets forth procedures that employers must follow in the event that they choose to withdraw a conditional offer of employment based upon information in a criminal background check. Specifically, the Act requires employers to take into consideration the factors outlined in Article 23-A of the New York State Correction Law (“Article 23-A”) to reach a conclusion as to whether the applicant’s criminal conviction history precludes employment because of either (i) a direct relationship between the applicant’s criminal conviction history and the job duties in question or (ii) an unreasonable risk to people or property. The Act further requires employers to provide the applicant with a copy of the background check report “in a manner to be determined by the Commission,” an analysis of the factors enumerated in Article 23-A also “in a manner to be determined by the Commission,” and an opportunity to respond to those documents before the conditional offer of employment is withdrawn. FULL ARTICLE

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