On February 7, 2023, Bill No. A03726 was introduced before the New York State Assembly which, if passed, would prohibit employers from inquiring about or making statements regarding “the arrest record or conviction record of any person who is in the process of applying for employment or interviewing for employment with such employer.”

This proposed legislation would effectively bring New York State into alignment with numerous other states and cities that have “banned the box” – i.e., restricted inquiries into criminal history until after the conditional offer stage.  This includes New York City, which has had a similar requirement in place since 2015 pursuant to the Fair Chance Act, but which also places additional limitations on the timing of criminal inquiries during hiring and additional obligations on employers when rescinding a job offer based on criminal history.

The proposed legislation would make it an unlawful discriminatory practice under the New York State Human Rights Law for an employer, employment agency, or their agents to ask a prospective applicant any question, in writing or otherwise, about the applicant’s criminal history prior to making an offer of employment. Additionally, it would be unlawful for an employer to search through public records or use consumer reports to gather information on an applicant’s criminal history prior to making an offer. However, employers would still be able to conduct criminal background checks or inquire about criminal history at the pre-offer stage if those actions are pursuant to any state, federal, or local law that require criminal background checks for employment purposes or bars employment based on criminal history.

Once an applicant has received a job offer, employers would be allowed to inquire about the applicant’s criminal history. An employer who decides to revoke the job offer based on such inquiry would then be required to explain to the applicant in writing the reasons for revoking the job offer and provide a “printed copy of any report indicating the [applicant’s] arrest record or conviction record.” The applicant would then have five (5) business days to respond to the report.

Employers should know that if the proposed legislation is signed by Governor Hochul, the law would take effect immediately after it is enacted. We will continue to monitor this bill and report on any further developments.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Margo Richard Margo Richard

Margo R. Richard is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Margo attended Loyola University New Orleans College of Law, where she graduated Cum Laude with a Law, Technology, and Entrepreneurship Certificate. While in…

Margo R. Richard is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Margo attended Loyola University New Orleans College of Law, where she graduated Cum Laude with a Law, Technology, and Entrepreneurship Certificate. While in law school, Margo served as a teaching and research assistant to Professor Masai McDougall. She competed as a team member of the American Bar Association Moot Court Team, a coach of the Mardi Gras Invitational Moot Court Team, and was selected for membership into the Order of Barristers. Margo was also a member of the Loyola Law Review, Phi Delta Phi Legal Honor Society, and Black Law Students Association.