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Proposed Federal “Ban the Box” Legislation Receives Bipartisan Support

On September 10, 2015, the Fair Chance Act (the “Act”) was introduced by a bipartisan group of legislators from both houses of Congress. The Act would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.  The proposed legislation would allow an employer to conduct a criminal history check after the conditional offer, and does not prohibit an employer from revoking the conditional offer on the basis of such findings.

The Act provides exceptions for “sensitive positions,” including those in which a prospective employee would have law enforcement or national security duties, or access to classified information.

The “ban the box” reform movement continues to attract the attention of legislators throughout the country. According to the National Employment Law Project, 19 states and more than 100 cities and counties have enacted similar legislation.  In addition, over a dozen cities and 7 states have extended such legislation to private employers.

New York City is a part of this growing trend in its adoption of The New York City Fair Chance Act. The NYC law, which went into effect on October 27, 2015, generally prohibits an employer with 4 or more employees from requiring job applicants to disclose criminal background information until after a conditional offer of employment has been extended.  Additionally, employers who obtain criminal background information following a conditional offer of employment are subject to a strict notification process in the event they seek to take an adverse employment action on the basis of their findings.  For a further description of this law, please see our prior blog post here.

Employers should take notice of applicable laws in each of the jurisdictions in which they operate, including at the municipal level, in order to ensure compliance with “ban the box” regulations. Employers are also advised to seek advice from experienced counsel both prior to conducting criminal history and background checks and before taking adverse employment action based on the results of criminal history and background checks.

Kathleen Simpson is co-author of this article. 

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Jonathan Sokolowski, Labor and Employment Legal Specialist, Sheppard Mullin
Associate

Jonathan Sokolowski is an associate in the Labor and Employment Practice Group in the firm's New York office.

Areas of Practice

Mr. Sokolowski's practice focuses on Labor and Employment matters, including client counseling and litigation. In particular, he has experience defending employers against single plaintiff and class action wage/hour and discrimination claims, drafting employment, severance, non-compete, and non-solicitation agreements, as well as drafting employee handbooks in compliance with state and federal law. Mr. Sokolowski also conducts...

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