New Requirements Could Be Coming to NYC's Ban the Box Law

By Michael Klazema on 5/27/2016

In October 2015, New York City's "Fair Chance Act," officially banning the box for all private and public employers operating within city limits went into effect. Under the law, businesses cannot ask questions about criminal history on job applications and must wait to conduct a background check on an applicant until after making a conditional offer of employment. Now that the law is in place, the New York City Commission on Human Rights wants to add new rules to the law. These changes, if approved, would require employers to adjust their processes for vetting their applicants further.

According to a report from the law website, the NYC Commission on Human Rights wants to impose several new rules upon employers regarding job applications. Already, private businesses in New York City have had to revise their job applications to remove questions about criminal history. If the Commission gets its wish, companies in the city would be legally barred from including language in their applications asking candidates to authorize future background checks. In fact, the rules would prohibit employers from even explicitly stating that there is a requirement for a background check for certain positions. That's not to say that there would be a ban on companies from actually requiring background checks; they just couldn't make that requirement clear on applications or job listings.

Instead, employers would have to approach candidates later in the process to inform them about background check requirements. Under the new rules, the background check itself wouldn't be the only thing delayed until after a conditional offer of employment. On the contrary, employers would have to extend a provisional offer before they could ask applicants to authorize a background check.

All of these requirements would apply to large corporations that use the same applications in various cities or states. Of course, not all areas have the same employment conditions as New York City. Most jurisdictions don't have “ban the box” legislation in place, and even those that do don't enforce some of the requirements that NYC's Commission on Human Rights does. As such, multi-state or multi-jurisdictional employees might include a disclaimer on their applications, telling NYC applicants that they don't have to provide information about their criminal histories or consent to background checks. The Commission's new requirements would render these disclaimers illegal, forcing multi-state employers to create entirely different applications for New York City candidates.

New York City's Fair Chance Act was a milestone because it represented a pledge to fight employment discrimination and criminal recidivism in the biggest city in the United States. However, these new requirements would do little to help ex-offenders find jobs. Eliminating the criminal history question from job applications makes sense because it means that employers aren't biased against individual candidates from the word go. Delaying the background check until after the conditional offer of employment also makes sense, because it gives ex-convicts a chance to prove themselves to employers before their past misdeeds get dragged into the conversation.

However, prohibiting employers from getting background check authorization until after extending an employment offer doesn't make sense. Nor does barring employers from stating in any capacity that background checks are a requirement for a job. While these rule changes might make it so that fewer ex-offenders are scared away from applying for certain jobs, it also could create a false sense of security for those applicants. Background checks are almost universally required for any job these days. Applicants—criminal record or no—deserve to know if they are going to have to pass a background check to get hired. There is no compelling reason to rob applicants of this valuable information.

The New York City Commission on Human Rights has been mulling these rule change possibilities since February, so expect a final verdict soon.



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