New York City Expands Protections Under Its Ban The Box Law For Applicants And Employees
06 April 2021
Lewis Brisbois Bisgaard & Smith LLP
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New York, N.Y. (April 5, 2021) – The New York
City Human Rights Law (NYCHRL) is considered to be one of the most
progressive discrimination laws in the nation. Earlier this year,
the New York City Council passed a bill which expands the scope of
the New York City Fair Chance Act (FCA), more commonly known as the
“ban-the-box” law. The FCA prohibits most New York City
employers from inquiring about an applicant’s criminal history
until after the employer extends a conditional offer of employment.
The amended FCA expands protections for both applicants and
employees with criminal backgrounds, including convictions, charges
and arrests. The amendments go into effect on July 28, 2021.
Existing FCA Regulations
The FCA initially took effect in October 2015 as an amendment to
the NYCHRL. The current FCA regulations incorporate existing New
York state criminal background provisions, including Article 23-A
of the New York Correction Law. The regulations set forth eight
factors that employers are required to assess when considering
taking an adverse action against an applicant based on arrest and
Amended FCA Regulations
The new amendments add “relevant fair chance” factors
that expand the FCA’s coverage and extend the law’s
protections to applicants and employees with pending arrests and
employees with criminal convictions. The relevant fair chance
factors to be considered are as follows:
- New York City’s policy to
overcome stigma toward and unnecessary exclusion of persons with
criminal justice involvement in the areas of licensure and
- The specific duties and
responsibilities necessarily related to the employment held by the
- The bearing, if any, of the criminal
offense for which the applicant or employee was convicted, or that
is alleged in the case of pending arrests or criminal accusations,
on the applicant or employee’s fitness or ability to perform
one or more such duties or responsibilities.
- Whether the person was 25 years old
or younger at the time the criminal offense at issue
- The seriousness of the offense.
- The legitimate interest of the public
agency or private employer in protecting property and the safety
and welfare of specific individuals or the general public.
- Any additional information produced
by the applicant or employee, or produced on their behalf, as to
their rehabilitation or good conduct, including a history of
positive performance and conduct on the job or in the community, or
any other evidence of good conduct.
Under the current FCA, an employer may withdraw a conditional
job offer if there is a relationship between the prior conviction
and the job being sought. However, under the amended FCA, the
employer may only rescind a conditional job offer after considering
the fair chance factors described above and after determining
“that either (i) there is a direct relationship between the
alleged wrongdoing that is the subject of the pending arrest or
criminal accusation and the employment sought or held by the
person; or (ii) the granting or continuation of the employment
would involve an unreasonable risk to property or to the safety or
welfare of specific individuals or the general public.”
The law is also broadened with respect to the scope of
“criminal history,” which will now include pending
arrests and other criminal accusations. As a result, employers are
prohibited from taking adverse employment actions against an
applicant or an employee for violations, non-criminal offenses,
non-pending arrests or criminal accusations, adjournments in
contemplation of dismissal, youthful offender adjudications or
sealed offenses, if disclosure of such matters would violate the
New York State Human Rights Law.
Failure to comply with the law subjects employers to the full
range of penalties available under the NYCHRL, including possible
lawsuits in which compensatory and punitive damages and
attorneys’ fees can be awarded.
Employers should revise their policies and procedures to comply
with the FCA amendments and train managers, supervisors and human
resources personnel about changes made to its policies, including
what questions can be asked at interviews and what information can
be included in job listings.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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