New York City “Bans the Box” with the Fair Chance Act

On June 10, 2015, New York City Council passed the Fair Chance Act, which aims to create opportunities for job seekers with criminal histories. In doing so, they join 27 other states and a rapidly growing number of cities and municipalities that have passed similar legislation.

There are a total of 27 states representing nearly every region of the country that have adopted the policies —California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Indiana (2017), Illinois (2014, 2013), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2015, 2016), Virginia (2015), and Wisconsin (2016).

Also, there are hundreds of cities and municipalities, such as Philadelphia, Los Angeles and San Francisco, that have similar existing or pending* laws on the books.

There are 9 states (HI, IL, MA, MN, NJ, OR*, RI, CT & VT) that have restricted private employers from asking conviction history questions on job applications.  This Act also compliments and references the existing state statute NY Article 23-A, which requires employers to, among other things, directly link criminal history to the position sought through an individualized assessment.

Notably, the Fair Chance Act will now require covered employers to “Ban the Box” during the application and interview process.  Specifically, NYC states that no employer can make an inquiry or ask an applicant about criminal history until the employer “has extended a conditional offer of employment to the applicant”.   Covered employers will also be required to eliminate any job advertisements indicating that criminal history will bar employment.

Also of note, the Act requires employers to perform an Article 23-A analysis referred to as the Fair Chance Act Notice of any history received, and upon making an adverse decision, provide a candidate with that analysis as well as the employer’s reasons for taking any adverse action.  Additionally, the position is to be held open for a reasonable period of time (3 days minimum) to give the candidate time to respond.

Will this provide individuals that have prior criminal history a “foot in the door” opportunity that they may otherwise not have received?  That remains to be seen.  One thing is certain, employers of all sizes need to continually review and evaluate their hiring practices to ensure they are meeting the ever-changing compliance landscape.