Over a hundred cities and counties in the United States have approved “Ban the Box” laws that encourage an employer to judge a job candidate’s credentials without distraction from non-job-related details. Ban the Box laws give employment seekers a fair opportunity to land a job by removing the criminal background question on job applications and by keeping employers from conducting unnecessary background checks.

In New York City, since 2015, Ban the Box – called the “Fair Chance Act” in New York City – keeps employers from requesting criminal background information from job applicants until after a provisional employment offer is made. If you have any questions about your rights in the state of New York after a criminal conviction, consult an experienced Westchester County criminal defense attorney for the answers you need.

Since the Fair Chance Act became law, the New York Commission on Human Rights has offered several revisions to the law, including guidelines for “per se” violations and an explanation of how employers may legally withdraw a conditional employment offer after conducting a background check. In August of this year, those revisions to New York City’s Fair Chance Act took effect.

WHAT ARE THE CHANGES TO THE FAIR CHANCE ACT?

Today in New York City, employers may not ask about a job applicant’s prior criminal history or even ask to run a background check until a conditional employment offer has been made.

If you are seeking work in New York City and you have any kind of criminal record, you should try to become familiar with the provisions of the Fair Chance Act. “Per se” violations of the Fair Chance Act by employers may include:

– expressing in any written or oral solicitation, policy, advertisement, or publication any employment specification or limitation regarding a criminal history (Phrases like “clean record required” or “must pass background check” cannot be used.)

– using a job application form that asks job seekers for permission to conduct a background check, or an application form that asks anything about an applicant’s criminal history, before making a conditional employment offer

– asking about a pending arrest or conviction before making a conditional employment offer

– using standardized job application forms in New York City – forms that may be legal at the employer’s other locations – which request criminal history information

– failing to provide the applicant with a written copy of an employer’s background check or a written copy of the employer’s Article 23-A analysis (Article 23-A is described below.)

– failing to keep the position open for a minimum of three business days from the applicant’s receipt of the background check and/or Article 23-A analysis

CAN NEW YORK CITY EMPLOYERS WITHDRAW CONDITIONAL JOB OFFERS?

After a conditional job offer has been made, that offer may be withdrawn only because of a misdemeanor, felony, or unsealed violation conviction. New York City employers, however, must conduct an Article 23-A analysis and must engage with the “Fair Chance Process” prior to withdrawing a conditional job offer. After making the offer, at that time employers may ask applicants about any criminal background and may conduct background checks after receiving the job seeker’s consent. If a conviction is discovered, the employer may ask for more details. Those details will be needed for an Article 23-A analysis.

Article 23-A, a New York State law, promotes employment opportunities for job seekers with at least one criminal conviction. The law “levels the playing field” for job seekers with criminal convictions and reduces recidivism by increasing the employment opportunities in this state for persons with criminal records. The law requires employers to use these eight factors to determine whether to hire someone with a criminal record.

Employers must consider:

– that New York encourages employers to hire persons with a criminal record
– the specific responsibilities and duties related to the employment
– what bearing, if any, the criminal offense(s) will have on the employee’s ability to perform one or more of – those responsibilities or duties
– the amount of time since the offense(s)
– the person’s age at the time of the offense(s)
– the gravity of the offense(s)
–  any information regarding the job applicant’s rehabilitation and subsequent behavior
– the reasonable interest of the employer in protecting property, specific persons, and the public

CAN A JOB APPLICANT BE REJECTED FOR A PRIOR CONVICTION?

Yes, in New York City, a job applicant can be rejected for a prior conviction, but only when there is a “direct relationship” between the criminal conviction and the employment being sought, or if hiring the applicant would create an “unreasonable risk” to property, specific persons, or the public at large. If, after conducting the Article 23-A analysis, an employer cannot ascertain that the “direct relationship” exception or the “unreasonable risk” exception applies, the employer cannot legally withdraw the offer of employment.

However, if a New York City employer establishes that one or both of the exceptions is applicable, and if the employer chooses to withdraw the conditional job offer, the Fair Chance Process comes into play. The employer must provide, in writing, transcripts of all information collected, including a written summary of oral information, to the applicant.

Furthermore, the employer must offer the applicant a written copy of the Article 23-A analysis, inform the applicant that he or she has a minimum of three business days to respond to the findings, and must decide if additional information from the applicant changes the Article 23-A analysis.

If, subsequent to all of the provisions described here, an employer ultimately chooses to revoke a conditional offer of employment, the employer must inform the job seeker in writing. Precisely which jobs are covered by the Fair Chance Act? It applies to all private and public employers in New York City with at least four employees. However, the law does provide exemptions for jobs in law enforcement, jobs working with children, and any job where existing law keeps someone with a particular conviction from being hired.

The Fair Chance Act benefits thousands of New Yorkers who need work, connects employers with hard workers, and reduces recidivism in New York City. Of course, looking for work can be a lot easier if you have no criminal record and nothing you feel you should hide.

If you’re accused of any felony or misdemeanor in Westchester County, New York City, or any adjacent jurisdiction, fight the charge aggressively, protect your rights, and obtain the legal help you need by contacting an experienced Westchester County criminal defense attorney.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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