On Wednesday, by a 45-5 vote, the New York City Council passed a bill (Int. No. 318) to amend the New York City Human Rights Law (“NYCHRL”) to further restrict employers from inquiring into or otherwise considering an applicant’s or employee’s criminal history in employment decisions. Mayor DeBlasio is expected to sign the bill into law.
For years, the NYCHRL and New York State Human Rights Law (“NYSHRL”) have prohibited employers from inquiring into or taking adverse action upon an arrest or criminal accusation that is not pending against an applicant or employee and that was terminated in favor of such person. In addition, before denying employment on the basis of conviction history, the NYSHRL and NYCHRL have required employers to engage in a multi-factor analysis, in accordance with Article 23-A of the New York State Correction Law, to determine whether a sufficient nexus exists between the offense and position sought.
The NYC bill goes several steps further to limit employers from asking about or using criminal history in hiring and other personnel decisions.
First, the bill prohibits employers from asking about criminal history on an initial employment application (“ban the box”) and at any time prior to extending a conditional offer of employment.
Second, the bill prohibits employers from stating on any job advertisement or other solicitation or publication that employment is conditioned or limited based on an applicant’s arrest or conviction history.
Third, before taking any adverse action (not just denying employment) on the basis of criminal history, the bill requires employers to:
- provide a written copy of the criminal history inquiry to the applicant in a manner determined by the New York City Commission on Human Rights (“NYCCHR”);
- provide an Article 23-A analysis in writing to the applicant in a manner determined by the NYCCHR, together with “supporting documents” setting forth the basis and reasons for the adverse action; and
- after providing the applicant with all of the required documentation, allow him or her at least three business days to respond and, during that time, hold the position open for the applicant.
The bill does except actions taken by an employer pursuant to any federal, state, or local law requiring criminal background checks for employment purposes or barring employment based on criminal history. Federal law includes the rules or regulations of a self-regulatory organization as defined by the Securities Exchange Act of 1934 (like FINRA). The bill also provides exceptions for various public employment positions.
The bill affords aggrieved applicants and employees a private right of action with the promise of generous remedies under the NYCHRL, including attorneys’ fees.
Once signed by the mayor, NYC will join the growing number of jurisdictions around the country that have prohibited inquiries about or other consideration of criminal history until after the employer has extended a conditional offer of employment. The bill also comes on the heels of the mayor signing a law limiting inquiries into and the use of credit history in employment decisions (as we blogged about last month). NYC employers should review and modify their background check procedures and policies to ensure compliance with these new laws.
Katharine Parker and Daniel Saperstein are Co-Chairs of Proskauer’s Hiring & Background Checks Group.