October 7, 2022

Volume XII, Number 280

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Reminder: New York City Fair Chance Act, Limiting Criminal Inquiry, Effective October 27

New York City employers must comply with the New York City Fair Chance Act, which restricts when employers can make inquiries about applicants’ criminal histories, beginning October 27, 2015. (See our article, New York City Enacts Ban-the-Box Legislation, for a detailed analysis of the law’s requirements.)

Based on the text of the enactment as well as guidance issued to date by the New York City Commission on Human Rights, the agency entrusted to enforce the law, employers should ensure they are doing the following:

1. Unless all employees of your organization fall within a statutory exemption, remove any criminal inquiry from the employment application. Based on informal guidance issued by the Commission, the Commission appears to suggest that multi-state employers implement a separate employment application that does not contain any criminal inquiry for New York City positions rather than merely directing New York City applicants not to answer the query contained on a national employment application.

2. The Commission also has indicated that any references to background checks not per se required by law should be removed from the New York City employment application. Consider such deletion.

3. Implement strategies to ask the criminal inquiry following a conditional offer of employment. While the Commission has yet to exercise its charge under the statute to issue the form of inquiry, it is fair to assume that an employer can ask, “Have you been convicted of any criminal offense, excluding youthful offender adjudications?”

4. Refine practices for conducting the individualized analysis of criminal conviction history already required by New York State and City law. This need is now underscored by the fact that the Commission on October 23 issued a model form that employers may use to comply with the law’s requirement to provide a written analysis to individuals as a precondition to disqualifying an individual based on criminal conviction background. As noted in the Commission’s guidance, the form can be modified or adapted to an employer’s preferred format if the material substance does not change.

5. Integrate the provision of the model form referenced above with the Fair Credit Reporting Act’s mandated pre-adverse action process to the extent any disqualifying criminal conviction information was obtained from a consumer reporting agency.

Jackson Lewis P.C. © 2022National Law Review, Volume V, Number 302
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About this Author

Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

212-545-4080
Daniel J. Jacobs, Jackson Lewis law firm, Labor Employment Attorney
Shareholder

Daniel J. Jacobs is a Shareholder in the New York City, New York, office of Jackson Lewis P.C. He assists both unionized and union-free clients with a full-range of labor and employee relations matters.
With respect to traditional labor matters, Mr. Jacobs represents clients in collective bargaining negotiations, contingency planning, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court.
Mr. Jacobs also has experience assisting clients in numerous industries with the...

212-545-4000
Susan M. Corcoran, Jackson Lewis, fair credit reporting lawyer, Labor Policy Attorney
Principal

Susan M. Corcoran is a Principal in the White Plains, New York, office of Jackson Lewis, P.C. Ms. Corcoran is a seasoned employment counselor and litigator and is often thought of as the “go to” person on national workplace law issues for her clients.

She is one of the leaders of the firm’s Background Check Resource Group, and serves as a resource on fair credit reporting act issues, as well as “ban the box” strategies. She taught a graduate employment law class for many years at Manhattanville College and frequently speaks...

914-872-6871
Ellen Bandel, Jackson Lewis, personnel policies lawyer, corporate reorganizations attorney
Associate

Ellen M. Bandel is an Associate in the New York City, New York, office of Jackson Lewis P.C.

Ms. Bandel assists both unionized and union-free clients with a full-range of labor and employee relations matters, including assisting clients in numerous industries with the development and maintenance of personnel policies, reorganizations and reductions in force, sexual harassment and other workplace conduct rules, wrongful discharge, and other workplace litigation. Ms. Bandel also advises clients on compliance with the myriad...

(212) 545-4000
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