New York City Expands Ban the Box Criminal Background Protections
Author: Emily Scace, XpertHR Legal Editor
January 14, 2021
Beginning July 29, 2021, New York City employers will face additional limits on the use of criminal background information during the hiring process when amendments to the city's ban the box ordinance take effect. The law applies to employers with four or more employees.
Under the amended law, employers considering adverse action against a job applicant or employee based on an arrest, criminal accusation or criminal conviction must consider certain "fair chance factors." Using these factors, the employer may take the adverse action only after identifying either:
- A direct relationship between the criminal conduct or alleged wrongdoing and the employment sought or held; or
- An unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Employers were already obligated to conduct an analysis of the relationship between preemployment convictions and the employment sought by an applicant before disqualifying the individual. However, the amended law extends this requirement to convictions that occur during employment, as well as to arrests and pending criminal charges for employees and applicants alike.
The fair chance factors include:
- The bearing of the criminal offenses or alleged wrongdoing on the individual's fitness to perform the duties of the position;
- Whether the individual was 25 years old or younger when the conduct occurred;
- The seriousness of the offenses;
- The employer's legitimate interest in protecting property, safety and welfare; and
- Any additional information provided by or on behalf of the applicant or employee regarding the individual's rehabilitation or good conduct.
Before taking adverse action against a current employee based on a criminal conviction, pending arrest or criminal claim, an employer must request information related to the relevant fair chance factors from the employee, analyze these factors and their relationship to the employment, provide a written copy of the analysis to the employee, and give the employee an opportunity to respond.
The New York City law also prohibits employers from considering or inquiring into non-pending arrests and criminal accusations, cases that may be dismissed, youthful offender cases, and convictions sealed under certain sections of criminal procedure law. In addition, employers may not inquire into, consider, or deny employment based on violations or non-criminal offenses.
An employer may, however, take adverse action against an applicant or employee who deliberately misrepresents their arrest or conviction history as long as:
- The adverse action is not based on the employee's failure to divulge information that a person may not be required to divulge;
- The employer provides the individual with a copy of the documents supporting the employer's finding of intentional misrepresentation; and
- The individual is given a reasonable time to respond.
HR professionals should be aware that 14 states and many cities have ban the box laws restricting when private employers can ask criminal background questions.