New York City Council Passes the "Fair Chance Act" Establishing New Process for Inquiring into and Considering Job Applicants' Criminal History

June 18, 2015

On June 10, 2015, the New York City Council passed the Fair Chance Act ("FCA"). It seems certain to be signed into law by Mayor Bill de Blasio in the coming weeks. 120 days after signing, New York City will join 17 other states and more than 100 cities and counties that have already adopted this type of "Ban the Box" legislation. You will need to modify your employment applications!

What you need to know about the FCA:
The FCA imposes new limitations on when employers (with 4 or more employees) can inquire into an applicant's criminal history and how they must document the process leading up to making the final hiring decision.

Under the new law, employers are no longer permitted to request information about an applicant's criminal history in the initial written job application or interview. Rather, they can only inquire into or make statements about criminal history after first determining that the applicant is qualified and extending a conditional offer of employment.

The FIRST STEP to complying with this new law is for all employers to edit their employment applications to remove any statements regarding or inquiry into an applicant's criminal history! You may not even indicate that the job offer is conditional based upon passing a criminal history inquiry.

Once this is done, there are still further limitations on how to request and assess this information. Specifically, the FCA has three requirements that must be met for an employer to legally rescind a conditional job offer based on an applicant's criminal history:

Requirement 1: A copy of the written "inquiry" into criminal history must be provided to the applicant. (Reminder: this is only after a conditional offer has been made). An "inquiry" includes, but is not limited to, criminal or consumer background checks and written questions.

Requirement 2: The employer must then document their analysis as to whether there is a direct relationship between the prior criminal offenses and the specific job sought that would justify the company to rescind the conditional job offer. Note that a provision in the NY Corrections Law already requires this analysis, but the FCA imposes a requirement that the analysis be reduced to writing.

Requirement 3: If the conditional offer is rescinded, the employer must provide the applicant with the written documents generated through Requirements 1 and 2 and give the applicant at least 7 business days to respond to the employer's decision to rescind the conditional job offer. During the response period, the employer must hold the position open for the applicant.

The FCA does not require employers to hire any particular applicant or place new restrictions on a company's ability to determine whether a prior criminal history disqualifies an applicant for a position. The FCA merely mandates that employers document the process of inquiring and assessing information pertaining to an applicant's criminal history and gives the applicant an opportunity to clear up misunderstandings or to explain extenuating circumstances. Failure to comply with the FCA may result in damages being assessed against an employer of no less than $1,000 per aggrieved applicant.

Things to consider:

  • Review and edit all written job applications and postings to remove all inquiries or statements referencing prior criminal history.
  • Inform all management and administrative personnel involved in the company's hiring process about this new law and instruct them to be proactive if they observe any documents or conduct that run afoul of the new law.
  • Train all individuals conducting interviews on the FCA's requirements for considering a job applicant's criminal history. Update all internal policies to ensure that the requirements are met where applicable.
  • Ensure that all job descriptions contain detailed and accurate information as to the specific duties to be performed. In the event the company seeks to rescind a conditional job offer, this will assist in properly and persuasively establishing the "direct relationship" between an applicant's criminal history and the specific job sought.
  • Remind all administrative personnel that they are to retain job application documents, including the documents pertaining to the FCA's three requirements for rescinding a conditional job offer, for at least 6 years after the date of application. This includes the written inquiry, the company's internal analysis of whether the prior history (if any) disqualified the applicant, and any applicant response and/or communications after the hiring decision was made.

For more information, please contact Laurent S. Drogin or Richard L. Steer.

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Name Title Direct Dial Vcard
Drogin, Laurent S. Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice 212.216.8016 VCard
Feder, Hagit Senior Compliance Administrator, CFE Senior Compliance Administrator, CFE 212.216.1109 VCard
Kleinmann, David N. Partner and Co-Chair of Restrictive Covenant Practice Partner and Co-Chair of Restrictive Covenant Practice 212.216.1115 VCard
Steer, Richard L. Partner and Chair of Employment Practices Liability Insurance Practice Partner and Chair of Employment Practices Liability Insurance Practice 212.216.8070 VCard
Toevs Carolan, Tara Partner Partner 212.216.8007 VCard
Zagorsky, Arthur Partner Partner 212.216.8030 VCard

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