New York City Final Regulations Clarify and Expand "Ban the Box" Law

Author: Rena Pirsos, XpertHR Legal Editor

August 3, 2017

Final regulations clarifying and expanding New York City's "ban the box" law - the Fair Chance Act (FCA) - take effect August 5, 2017.

The FCA, which has been in effect since October 27, 2015, is considered one of the toughest "ban the box" laws in the nation. It prohibits employers with four or more employees from making criminal inquiries of job applicants, or conducting searches of public records and consumer reports that may contain an applicant's criminal background information, until extending a conditional job offer. Even after an employer lawfully inquires about or examines an applicant's criminal history, it still must comply with other requirements before denying employment, including:

  • Providing a written copy of the inquiry to the applicant;
  • Providing supporting documents that formed the basis of any adverse action; and
  • Giving the applicant a reasonable period of time (at least three business days) to respond.

The final regulations make it even harder for covered employers, as well as employers located outside of New York City but that do business there, to perform criminal background checks on job applicants throughout the hiring process. The following list summarizes the key things accomplished by the final regulations:

  • Establish certain definitions and criteria regarding procedure and application of the FCA;
  • Establish per se violations of the FCA;
  • Clarify the types of questions and statements prohibited under the FCA;
  • Explain the meaning of a "conditional offer" and establish the limited circumstances under which an employer can revoke a conditional offer;
  • Explain what an employer should do if it inadvertently learns about an applicant's criminal history prior to making a conditional offer;
  • Clarify the procedure an employer must follow upon learning of an applicant's or employee's criminal history, and the steps to take before revoking a conditional offer or taking an adverse employment action;
  • Establish guidelines that employers must follow when considering whether and how applicants' and employees' criminal convictions or pending cases relate to the duties of a prospective or current job or would pose an unreasonable risk to the property or the safety or welfare of specific individuals or the general public;
  • Establish the information an employer must provide to an applicant or employee if a determination is made to revoke a conditional offer based on conviction history or a pending case, and clarify how an employer must evaluate an applicant or employee's request for more time;
  • Require an employer to consider an applicant's or employee's documentation supporting the assertion that the information on the background check contains an error;
  • Clarify the exemptions under the FCA;
  • Clarify that employers may not request information, inquire about or take adverse actions based on non-convictions;
  • Clarify that individuals with pending criminal cases are protected by the FCA; and
  • Update the definition of "domestic partners."