New York City joined the ranks of municipalities with a “ban-the-box” law in 2015. The original law prohibited employers with 4 or more employees from asking about an applicant’s pending arrest or criminal conviction record until after making a conditional job offer. Recent amendments to the New York City Fair Chance Act will add new protections for employees with arrests or convictions during employment.

The New York City Council passed the local law on December 10, 2020. Mayor Bill DeBlasio did not sign or veto the law in the time allowed. As a result, the amendments became law on January 10, 2021. The changes will take effect on July 28, 2021.

NYC’s Ban-the-Box Law

In addition to New York laws favoring the re-employment of individuals with criminal records, covered New York City employers must follow the city’s Fair Chance Act when hiring new workers.

Like other ban-the-box ordinances, the 2015 NYC law forced employers to remove questions about criminal histories from job applications. It further precluded employers from inquiring about an applicant’s criminal conviction record until after a conditional offer of employment.

The law separately prohibited employers from searching public databases for information about an applicant’s criminal record (e.g., “background check”) before a conditional offer of employment.

For more on similar laws in other New York cities, read my earlier post Checking in on New York Ban-the-Box Laws.

Criminal Convictions During Employment

The NYC Fair Chance Act will no longer only affect hiring decisions. It will also protect employees convicted during employment.

As with pre-employment convictions, an employer must evaluate the various legally-established factors and determine whether one of the following applies before taking adverse action:

• there is a direct relationship between the criminal conviction and the employment held by the person; or
• the continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Pending Arrests and Criminal Accusations

The amendments also add new protections for employees with pending arrests or accusations of criminal wrongdoing. Employers similarly must consider the “fair chance factors” to decide whether adverse action may be taken either because there is a direct relationship between the alleged wrongdoing and the job or employment would involve an unreasonable risk to property or people’s safety.

Fair Chance Factors for Convictions and Arrests During Employment

When considering discipline for existing employees based on convictions or arrests during employment, employers must consider all of these factors:

• the policy of New York City to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
• the specific duties and responsibilities necessarily related to the employment held by the person;
• the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities;
• whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations;
• the seriousness of such offense or offenses;
• 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; and
• any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

These factors are similar, but not identical, to the factors that apply in making hiring decisions based on a criminal conviction record.

Decisionmaking Process

Before taking any adverse employment action against a current employee based on a criminal conviction or pending arrest, an employer must:

1. Request information from the employee regarding the fair chance factors.
2. Consider the impact of the factors on the direct relationship and unreasonable risk analysis.
3. Give the employee a written copy of such analysis with supporting documents and the employer’s reasons for taking the employment action.
4. Allow the employee a reasonable time to respond before taking adverse action.

Specific Employer Rights

Temporary Suspensions

Employers may place employees on unpaid leave “for a reasonable time” while completing the process the law requires before taking adverse employment actions.

Intentional Misrepresentations

The law also permits employers to discipline applicants and employees from making intentional misrepresentations about their arrest or conviction history. This carveout doesn’t apply if the misinformation was provided in response to an inquiry prohibited by the law. And, in the case of apparent misrepresentation, the employer must give the individual a copy of the documents demonstrating an intentional misrepresentation and allow them reasonable time to respond.

Exceptions

The New York Fair Chance Act will now apply to all employers regarding employees in NYC with only some exceptions for police, law enforcement agencies, and public employees subject to certain other disciplinary procedures.

The law also does not require employment when another law prohibits it based on the nature of the conviction and/or job.

Preparing to Comply

Employers have until July 28, 2021, to become familiar with these new employee protections and plan accordingly. Employees who engage in crimes before then will remain subject to discipline without these protections. However, once the law takes effect, employers will need to follow the mandatory evaluation process before acting based on employee criminal activity. Though many criminal acts may still warrant dismissal or other discipline, employers will need to request information from employees and document their reasons for taking any resulting action. This process will be a significant change in many employers’ disciplinary practices.

New York City provides more information about the Fair Chance Act here.

For more updates on escalating restrictions on New York employers, follow Horton Law on LinkedIn.