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NYC Issues 'Ban the Box' Final Rule

Posted on August 04 2017 10:25 AM

Final Rule Effective August 5, 2017

New York City has released a final rule under the local "Ban the Box" law (also known as the "Fair Chance Act"), which generally applies to employers with 4 or more employees. Key points from the final rule are outlined below.

"Per Se" Violations
The city has determined that the following actions (among others) are a special type of violation:

  • Using within the city a standard form, intended to be used across multiple jurisdictions, that requests or refers to criminal history.
  • Failing to comply with applicable requirements of Section 8-107(11-a) of the Human Rights Law, namely: to provide applicants a written copy of any inquiry an employer conducted into the applicant's criminal history; to share with the applicant a written copy of the employer's Article 23-A analysis; or to hold the prospective position open for at least 3 business days from the date of an applicant's receipt of both the inquiry and analysis.

These types of violations are per se violations. A "per se" violation is an action (or inaction) that, standing alone, is a violation of the law, regardless of whether any adverse employment action was taken (or any actual injury was incurred). Click here (§ 2-04) for additional per se violations and exemptions.

Conviction History Obtained After a Conditional Offer
After an employer extends a conditional offer to an applicant, an employer may make inquiries into or statements about the applicant's conviction history. (Note: At no point may an employer seek or consider information pertaining to a non-conviction). An employer may:

  • Ask (either orally or in writing) whether an applicant has a criminal conviction history;
  • Run a background check (or, after receiving the applicant’s permission and providing notice, use a consumer reporting agency to do so); and
  • Ask the applicant about the circumstances that led to a conviction and gather information relevant to the Article 23-A factors. Upon receipt of an applicant's conviction history, an employer may elect to hire the individual. If the employer does not wish to withdraw the conditional offer, the employer does not need to engage in the Article 23-A analysis.

Withdrawing a Conditional Employment Offer or Taking Adverse Employment Action
Should an employer wish to withdraw its conditional offer of employment or take an adverse employment action based on an applicant's or employee's conviction history, the employer must engage in an Article 23-A analysis and follow the Fair Chance Process. The final rule contains comprehensive procedures (§ e) regarding the Article 23-A analysis and Fair Chance Process, including a description of the documentation generally required to be provided by the employer. 

The final rule is effective August 5, 2017. Affected employers are advised to read the rule in its entirety for information on exemptions, temporary help firms, notice requirements, and more. Additional details and resources, including FAQs and a Fair Chance Act notice, are available by clicking here.

To review other laws specific to New York, visit the State Laws section, click on New York, and choose your topic of interest from the left-hand navigation menu.