July 6, 2020

Volume X, Number 188

July 06, 2020

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New York City Council Debates Expansive “Ban the Box” Bill

A couple of months ago, New York City Council showed general support for a proposal that would effectively ban credit checks in hiring and other personnel decisions.  As the council continues to debate credit checks, it also is considering a mayor-backed proposal (Int. No. 318) that would remove another potential barrier to hire—an applicant’s criminal history.

Several states and localities have enacted laws within the last few years limiting the ability of private employers to inquire into or otherwise consider an applicant’s or employee’s arrest or conviction record.  For years, in accordance with Article 23-A of the New York Correction Law, before taking adverse action on the basis of an applicant’s or employee’s conviction history, employers in New York State have had to engage in a multi-factor analysis to determine whether a sufficient nexus exists between the offense and position sought.

NYC’s “ban the box” proposal seeks to further restrict employers from considering conviction history when making hiring decisions.

  • First, employers would have to remove any criminal history inquiries on the initial employment application (i.e., “ban the box”), and wait to ask such questions until after extending the applicant a conditional offer of employment.

  • Second, employers could not take an adverse action based on felonies more than ten years old or misdemeanors more than five years old regardless of whether the conviction relates to the job.

  • Third, employers would not only have to continue to apply an Article 23-A analysis to the felonies and misdemeanors they may otherwise consider, but also provide that analysis in writing to the candidate before taking an adverse action on the basis of criminal history.

  • Fourth, employers would have to afford applicants at least seven business days (as opposed to the recommended five days under the Fair Credit Reporting Act) to respond to questions about the results of the criminal background inquiry.

Very few jurisdictions in the country—even those with “ban the box” laws—have imposed such expansive restrictions on employers.  Given these potential obstacles and the wide support behind this proposal, New York City employers should closely monitor future developments and anticipate changes to their hiring processes in 2015.

© 2020 Proskauer Rose LLP. National Law Review, Volume IV, Number 349


About this Author

Katharine H Parker, Labor Employment Attorney, Proskauer Rose Law Firm

Katharine Parker is a Partner in the Labor & Employment Law Department and co-head of the Employment Law Counseling & Training and Government Regulatory Compliance and Relations Groups.

Daniel L Saperstein, Proskauer Law Firm, Labor Employment Attorney

Daniel L. Saperstein is an Associate in the Labor & Employment Law Department, resident in the Newark office. He is a member of the Employment Litigation & Arbitration, Labor-Management Relations, Employment Law Counseling & Training, International Labor & Employment, and Whistleblower & Retaliation Groups, as well as the Dodd-Frank Task Force.