New York City’s ​“Ban the Box” Law, the Fair Chance Act, in Effect

Just a reminder that New York City’s ​“Ban the Box” law, the Fair Chance Act, actually goes into effect today, October 27, 2015.

We summarized the key provisions of the law in a prior post. The new law now provides that employers cannot do background checks until the conditional offer has been extended. It also requires that a City employer provides a written copy of this Article 23-A analysis to every applicant and, in the event of an adverse finding, offer the applicant at least three (3) business days to respond (during which time the position must be held open for the applicant). The City Commission has not published any regulations. However, it did put out a ​“Fair Chance Notice” that employers can use to comply with the notice requirement. You can adapt the form, as long as you capture the key provisions of the analysis.

Also, remember that even before the Fair Chance Act, Article 23-A of the New York State Correction Law required employers to consider multiple factors, including the date of a conviction and whether there is a connection between the conviction and the position sought, before rejecting an applicant who has a history of convictions. That law, of course, remains in effect and all hiring decisions are likely to come under increasing scrutiny. So, before you do a background check or reject an applicant based on the results of one, proceed very cautiously.

Finally, review all of your job postings and advertisements, and make sure that you do not state that there is any ban on hiring applicants with a criminal history. Such statements are most likely unlawful and could subject your company to litigation.