After about six years from passing their first ban-the-box law, NYC has updated its Fair Chance Act and the changes will take affect this summer.
When Ban-the-Box laws came into existence 20 plus years ago they were generally enacted at a statewide level. Over time cities took up the call for legislation regarding the use of criminal history reports, specific to their use during the pre-employment screening process and as related to the question of a criminal history on employment applications.
Larger cities enacted ban-the-box laws and, over time, continued to update and expand the scope of this type of legislation. One example of this evolution with a ban-the-box law is New York City.
The city’s initial law came into existence in 2015 but recently took action to improve the law, and these changes take effect in July 2021.
From the National Law Review’s website on January 29, 2021:
On January 10, 2021, amendments to the New York City Fair Chance Act (“FCA”) – New York City’s “ban-the-box” law – were passed into law. The amended FCA will significantly expand employment protections for applicants and employees with criminal background records, including convictions, charges, and arrests. natlawreview.com/article/new-york-city-expands-its-ban-box-law
One of the key areas on the newly expanded law regards the question of “non-pending arrests” or “criminal accusations.”
From JDSupra.com on January 12, 2021:
It is unlawful to either make any inquiry about non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications or sealed offenses, when such an inquiry would violate the New York State Human Rights Law. Currently, the FCA prohibits denying employment on these bases, but does not prohibit inquiries about such information. jdsupra.com/legalnews/2021-employment-law-spotlight-new-york-2307634/
Every jurisdiction can have a law that is unique and finely nuanced. Without a federal law governing the use of criminal history confusion can be created with different laws and cause considerable concern for hiring managers and HR Departments. At this point in time it is very important to understand all the Local, State and Federal laws concerning the use of public records such as criminal records in the hiring process and when and where such records can be utilized.
The new and expanded protections for employees under New York City’s expanded Fair Chance Act are numerous.
From the National Law Review’s website on January 22, 2021:
The amended Fair Chance Act expands employee protections in the following ways:
New York City employers will now be:
- Required to conduct the Fair Chance Process when seeking to act on a pending arrest or other criminal accusation.
- Required to undergo the Fair Chance Process when seeking to rescind a promotion or transfer, or when ending the employment of a current employee.
- Required to apply the Fair Chance Act to independent contractors and freelancers.
- Prohibited from inquiring about specific types of criminal history at any point, including the employee/applicant’s (1) violations, (2) non-criminal offenses, (3) non-pending arrests or criminal accusations, (4) adjournments in contemplation of dismissal, (5) youthful offender adjudications or (6) sealed offenses. natlawreview.com/article/amendment-to-new-york-city-s-fair-chance-act-further-prohibits-employers-basing
The expansion of New York City’s Ban-the-Box law serves as a great example to the overall complexity of such a law as well as the willingness to expand and change law. Employers should take immediate note and work with a well-qualitied third-party pre-employment background screening agency in order to remain compliant with existing as well as changing law.
To read more about the effects of NYC’s newly revised ban-the-box law and how that will affect the use of criminal background records in the hiring process read recent CriminalBackgroundRecords.com press release: NYC Example of Ban-the-Box Law Evolution at a Municipal Level