In New York City and elsewhere in the country in recent years, job applicants and employees have obtained increased protections from employment discrimination based on criminal history. “Ban the box” laws and ordinances, including New York City’s Fair Chance Act (FCA), provide opportunities for tens of thousands of workers, under the idea that past transgressions should not render a person ineligble for all employment. As New York City explains, “there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another and antagonistic to each other because of their actual or perceived differences, including those based on . . . conviction or arrest record.”
The City Council recently passed substantial amendments to the FCA, further expanding protections for job applicants and workers against discrimination based on pending criminal charges or convictions arising during employment. The amendments, which Mayor Bill DeBlasio is expected to sign, also further limit the kind of information employers can request about a candidate’s or employee’s criminal history.
Current FCA Limitations on Criminal History Inquiries
Initially enacted in 2015, the FCA generally prohibits New York City employers from asking about an applicant’s record of criminal convictions until after they extend a conditional offer of employment. It also prohibits employers from searching publicly available sources for information about an applicant’s criminal history before making a conditional offer. When an employer makes a conditional employment offer, the FCA also requires it to weigh multiple factors (codified in N.Y. Correction Law Article 23-A), make an individualized assessment of a candidate’s conviction history and its relationship to the position, and explain that assessment in writing should the employer decide to deny employment to the applicant.
Employers Must Conduct Individualized Assessments of Pending Criminal Accusations and Arrests
Before the FCA’s recent expansion, employers could withdraw a conditional employment offer or terminate a current employee based on an open, pending arrest, charge, or accusation without needing to assess those matters individually. Now, employers must evaluate pending issues based on factors that are similar, but not identical, to those used to assess a prior conviction.
Specifically, an employer must consider whether the applicant or employee was 25 years of age or younger at the time of the underlying offense. The employer must also consider “any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or other evidence of good conduct.” These factors are in addition to the others that employers must weigh, each involving assessments of the relationship between the allegations, arrest, charge, and position in question.
Employers may only withdraw a conditional offer or terminate an employee if they conclude, after conducting their assessment, that either:
- There is a direct relationship between the alleged acts that are the subject of the pending arrest or accusation and the employment sought or held; or
- The granting or continuation of employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
If an employer makes either conclusion and withdraws an offer or terminates an employee, it must provide the candidate or employee with written notice that includes the substantive basis for their determination. It must then allow the applicant or employee to provide additional information or documentation in response to the decision.
Other New Limitations on Employer Inquiries and Adverse Employment Actions
The new FCA amendments also add the following protections for workers:
- Along with conducting the multi-factor assessment for pre-employment convictions, employers must now also engage in the same process for convictions that occur during employment before making an adverse employment decision.
- Employers cannot inquire as to non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or convictions sealed under certain sections of the criminal procedural law.
- Employers cannot ask about non-criminal violations and offenses and cannot consider such matters in making an adverse employment decision.
- Employers must affirmatively solicit information from applicants relating to the factors they must consider when assessing the applicant’s criminal history.
Outten & Golden: Protecting the Rights of Workers
While these changes to the law are unquestionably a positive development, it doesn’t mean that all employers will comply, nor does it guarantee that applicants or employees won’t still face discrimination because of their criminal backgrounds. When that happens, the discrimination and harassment attorneys at Outten & Golden stand ready to help. If you have questions or concerns about employment discrimination, please contact us today.
