New York City - Horton Management Law

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:

Request information from the employee regarding the fair chance factors.
Consider the impact of the factors on the direct relationship and unreasonable risk analysis.
Give the employee a written copy of such analysis with supporting documents and the employer’s reasons for taking the employment action.
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.

The New York City Human Rights Law (NYCHRL) now imposes a higher burden on employers regarding workplace accommodations. Whereas most discrimination/accommodation laws rely on an “interactive process,” the NYCHRL requires employers to engage in a “cooperative dialogue” and issue a written determination. Learn more about this increased burden on New York City employers.

Reasonable Accommodations Under the New York City Human Rights Law

The New York City Human Rights Law prohibits discrimination in employment, housing, and places of public accommodations based on numerous protected characteristics. A few of the legally protected categories also afford employees rights to reasonable accommodations:

Disability
Religious beliefs
Pregnancy, childbirth, or a related medical condition
Victims of domestic violence, sex offenses, or stalking

Disability Accommodations

The NYCHRL defines disability as “any physical, medical, mental, or psychological impairment, or a history or record of such impairment, and includes a full range of sensory, mental, physical, mobility, developmental, learning, and psychological disabilities whether they are visible and apparent or not.” Employers in New York City must make reasonable accommodations for individuals with disabilities if they know of or should have known of the disability. However, employers do not have to make an accommodation that would pose an “undue hardship”.

Similar standards apply to accommodations based on the other protected characteristics above.

Cooperative Dialogue

Most other laws requiring employees to make reasonable accommodations, such as the federal Americans with Disabilities Act, envision an “interactive process” between the employer and employee.

Since 2018, the NYCHRL has imposed a higher burden on employees, requiring them to engage in a “cooperative dialogue” with an employee requesting accommodations.

The requirements of cooperative dialogue for employers include:
1. Learning of the employee’s need for accommodation;
2. Initiating a cooperative dialogue;
3. Communicating in good faith with the employee; and
4. Notifying the employee, in writing, of the employer’s determination regarding the accommodation.

The exchange between the employer and employee should adress

the individual’s needs and considerations of potential accommodations,
alternatives to a requested accommodation, and
difficulties that the accommodation may pose to the employer.

Cooperative Dialogue Process

Under the NYCHRL, employers have an affirmative duty to engage in a cooperative dialogue even in some situations when the employee has not requested accommodation. For example, employers may have the responsibility to observe whether an employee’s performance at work has diminished because of a disability. If the employer reaches this belief, then management must initiate a cooperative dialogue with the employee.

The employer should not ask the employee whether they have a disability. Instead, management should ask whether anything is going on that the employer can help with and inform the employee of any available support, including reasonable accommodations. Once the employer engages in the dialogue process, the employee does not waive the opportunity to seek accommodation in the future if they choose not to reveal that they have a disability.

After the parties have engaged in the cooperative dialogue process, the employer must give the employee a final determination identifying any accommodation that was granted or denied.

Duration of Cooperative Dialogue

A cooperative dialogue is ongoing until one of the following occurs:

1. The employer grants a reasonable accommodation; or

2. The employer reasonably concludes that:

No accommodation exists that will allow the employee to perform the essential requisites of the job;
There is no accommodation available that will not cause it undue hardship; or
A reasonable accommodation was identified that meets the individual’s needs, but the individual did not accept it, and no reasonable alternative was identified during the cooperative dialogue.

Good Faith Cooperative Dialogue

When evaluating whether the employer engaged in the accommodation process in good faith, the New York City Commission on Human Rights will consider various factors, including whether the employer:

Has a policy informing employees how to request accommodations.
Responded to the request promptly in light of the urgency and reasonableness of the request.
Sought to obstruct or delay the cooperative dialogue or to intimidate or deter the employee from requesting the accommodation.

Employers violate the NYCHRL if they “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”

Written Determination

After engaging fully in a cooperative dialogue, the employer will decide whether to provide an accommodation. Management must then notify the employee in writing of the determination. After receiving the determination, the employee can continue to make new accommodation requests. In that case, the employer must re-engage in a cooperative dialogue.

What Should Employers Do?

Employers in New York City must comply with these cooperative dialogue requirements in any case where an employee may have a right to a workplace accommodation. Failure to do so is a standalone violation of the NYCHRL.

New York businesses should review the employee policies and procedures to ensure compliance with this relatively new and unusual obligation. Supervisors must understand these requirements and the appropriate way to engage in a cooperative dialogue. Or at least when to make a referral to someone who will handle this process (e.g., human resources).

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Tag: New York City

NYC Adds Protections for Employees with Criminal Arrests or Convictions During Employment