NYC Fair Chance Act Prohibits Employers From Asking About Criminal History

Beginning October 27, 2015, the New York City Fair Chance Act, Local 63 of 2015 will take effect. The law prohibits most employers in New York City, other than employers in the securities industry, from asking an applicant for employment, either orally or on an employment application, about his or her arrest history or criminal record until after the employer has made a conditional offer of employment to the applicant.

Colloquially referred to as a "ban-the-box" law, the new statute will require employers in the City to remove questions related to criminal convictions and arrest history from employment applications. 

Under the new law, once an employer in New York City has extended a conditional offer of employment, (i) the employer may require the prospective employee to complete an employment application that inquires about the prospective employee’s arrest history or criminal record, and (ii) the employer may inquire, orally or in writing, about the prospective employee’s criminal history.

However, the NYCFCA requires that, before the employer declines to hire an applicant for employment based on such an inquiry about the applicant’s arrest history or criminal conviction record, the employer must:

  1. Provide a written copy of the inquiry to the applicant.
  2. Perform, and provide in writing to the applicant, an analysis of the applicant under N.Y. Correction Law § 752, which prohibits employers in New York State from firing or refusing to hire an individual because he has been convicted of one or more crimes, unless (1) “there is a direct relationship between one or more of the previous criminal offenses and the specific . . . employment sought or held by the individual; or (2) . . . the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”  See also N.Y. Correction Law § 753 (setting forth factors which an employer in New York State must consider in determining whether the person’s criminal conviction is directly related to the job or whether employment would pose an unreasonable risk).
  3. After giving the applicant the inquiry and analysis in writing, allow the applicant a reasonable time to respond, which must be no less than three (3) business days.
  4. During the applicant’s reasonable time to respond, hold the employment position open for the applicant.

Local Law 63 amends sections 8-102 and 8-107 of the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 – 8-131.

The Fair Chance Act applies to employers in the private sector in New York which employ four or more individuals. Further, the NYCFCA applies to State and municipal governments and agencies in New York which employ 15 or more individuals. The new Law does not apply to the U.S. government.

The New York City Human Rights Law is among the broadest, and we would argue the best, anti-discrimination statutes in this country. We applaud the City Council for passing and continually expanding this important law.