New York City Bans the Box and Much More

By Michael Klazema on 6/22/2015

New York City’s beyond-the-box ordinance, as it relates to employment in the private sector, applies to employers with four or more employees. Individuals employed as independent contractors to carry out work for an employer’s business enterprise, who are not themselves employers, will be considered employees of the employer.

The ordinance makes it an unlawful discriminatory practice for an employer, employment agency, or agent thereof to:

  1. Deny employment to any person or take adverse action against any employee because of one or more criminal convictions (this restriction applies to all employers regardless of the number of employees). Because the law before amendment already prohibited denying employment based on a criminal conviction, the addition of “take adverse action” extends the law to decisions other than denying employment, such as placement in a less advantageous job.
  2. Deny employment to any applicant or take adverse action against an employee because of an arrest or criminal accusation if the denial or adverse action is based on an arrest or accusation that resulted in a favorable disposition, youthful offender adjudications, or dismissed or sealed records;
  3. Make any inquiry about any arrest or criminal accusation of an applicant or employee when the inquiry relates to an arrest or accusation that resulted in a favorable disposition, youthful offender adjudications, or dismissed or sealed records;
  4. Declare, print, or circulate or cause to be declared, printed, or circulated any solicitation, advertisement, or publication, which expresses, directly or indirectly, any limitation or specification in employment based on a person’s arrest or criminal conviction; or
  5. Make any inquiry or statement about pending arrests or criminal conviction records of any employment applicant until after a conditional offer of employment is made.

The ordinance also states that applicants will not be required to respond to any inquiry or statement that violates the ordinance and any refusal to respond must not disqualify an applicant from employment. Presumably, this means that an employer commits an unlawful discriminatory practice if it requires applicants to disclose criminal history before a conditional offer of employment is made, or disqualifies an applicant who does not respond to such a requirement.

An offer to place an applicant in a temporary help firm’s general candidate pool will constitute an offer of temporary employment. To clarify, the term “any inquiry” means any question communicated to an applicant in writing or otherwise, or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information. The term “any statement” means a statement communicated in writing or otherwise to the applicant for purposes of obtaining an applicant’s criminal background information about (i) an arrest record; (ii) a conviction record; or (iii) a criminal background check.

After extending a conditional offer of employment to the applicant, an employer may inquire about the applicant’s arrest or conviction record – but only if, before taking any adverse employment action based on the inquiry, the employer:

  1. Provides a written copy of the inquiry to the applicant in a manner to be determined by the commission;
  2. Performs an analysis of the applicant under article 23-A of the New York state correction law;
  3. Provides a written copy of the analysis to the applicant in a manner to be determined by the commission, which will include supporting documents that formed the basis for an adverse action based on the analysis and the employer’s reasons for taking adverse action against the applicant; and
  4. After giving the applicant the inquiry and the analysis in writing, allows the applicant a reasonable time to respond (no less than three business days) and holds the position open for the applicant during that time.

Presumably, the analysis of the application of Article 23-A could be delivered with a pre-adverse action notice under the federal Fair Credit Reporting Act, and the waiting period under the New York City ordinance could overlap the waiting period that the FCRA requires.

Article 23-A of the correction law prohibits discrimination against persons previously convicted of one or more criminal offenses. It requires employers to consider other factors related to the applicant, including:

  1. The public policy of the state that encourages the licensure and employment of persons previously convicted of one or more criminal offenses;
  2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;
  3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more duties or responsibilities;
  4. The time that has elapsed since the occurrence of the criminal offense or offenses;
  5. The age of the person at the time of the occurrence of the criminal offense or offenses;
  6. The seriousness of the offense or offenses;
  7. Any information produced by the person, or produced on his or her behalf, about the persons’ rehabilitation and good conduct; and
  8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

Exceptions to the new ordinance are:

  1. Positions in law enforcement;
  2. Instances in which a state, federal, or local law requires that a criminal background check be performed; and
  3. Positions that are susceptible to bribery or that involve the safeguarding of persons vulnerable to abuse (to be determined by the New York City Commission of Citywide Administrative Services.

Violators of the new law will be subject to civil penalties up to $125,000. They will also be subject to compensatory damages (including back pay, front pay, and emotional distress), uncapped punitive damages, and attorney’s fees. Additionally, employers could be held strictly liable for unlawful hiring decisions by managers and supervisors.

What This Means For You:

  • New York City has made it illegal to inquire about criminal history before an offer of employment is made.
  • New York City places additional requirements on employers when the decision not to hire is based, entirely or partially, on the applicant’s criminal history.
  • You should determine whether you have employees in New York City. 
  • If you do, review your employment application, the timing of your background checks, and how you will deliver an Article 23-A analysis with your lawyer.

Go here to view the New York City File #0318-2014:|Text|&Search=0318-2014

Go here to review 23-A of the New York Correction Law:|Text|&Search=0318-2014

See’s Legislation and Compliance Update about the posting and notice requirements for New York’s Article 23-A here:

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