Some employers in New York City weren’t exactly thrilled when the Fair Chance Act took effect in 2015. Initially, the law targeted employers and employment agencies, detailing the processes they must follow before making adverse employment decisions based on an applicant’s criminal history. It’s referred to as “one of the nation’s most comprehensive ban the box laws restricting employers’ use of criminal history in the employment process,” according to an article by Stephen A. Fuchs at Littler Mendelson.
More than 15 months after a public hearing in March 2016, the NYC Commission on Human Rights published the final regulations in July, which took effect last week (Aug. 5). In essence, the rules make it even more difficult for employers located in the city or those doing business in the city to “screen applicants whose criminal history may affect their ability to do their job or present an unreasonable risk to their business, customers or employees,” the author states.
Employers must now consider eight factors before rejecting applicants based on their criminal convictions. Employers must also provide rejected candidates with a pre-adverse action analysis of how their conviction is relevant to the job they sought or the risk their criminal history creates upon employer’s property, customers, employees or the public.
The final regulations also include eight violations. Here’s a sampling:
- Mentioning the need for a criminal history or even background check as part of the hiring process on any recruiting materials like applications, solicitations or advertisements.
- Disqualifying applicants for refusing to respond to any prohibited questions about their criminal history.
- Asserting that people with a criminal history or certain convictions will not be considered for a job or hired.
- Changing the requirements of a position to disqualify an applicant after learning of the person’s criminal history
While the new rules are stringent there is a bit of flexibility.
For example, employers are not restricted from considering an applicant’s or employee’s pending criminal charges. Job candidates can also be disqualified if they’re not available to work because they’ve been arrested. Still, employers can’t ask or search for information about these pending criminal charges before a conditional offer of employment is made.
Temp firms are also impacted. As employers, they’re bound by the same restrictions on inquiries regarding criminal history prior to making a conditional offer. Even employers using a temp agency must follow the same process by not inquiring about an applicant’s criminal history until the applicant is assigned to an employer.
These new regulations may change the way you currently recruit or select job candidates. Overall, there are two key questions you must ask: Would a job candidate’s criminal history negatively impact the individual’s ability to perform the job? Likewise, would employing the person cause undue risk or harm in any shape or form to coworkers, customers, the public or even your workplace?
With the enforcement of such strict rules, employers and employment agencies must exercise caution.
- Review and revise recruitment materials, job applications, policies and procedures and other documentation to make sure it complies with the new regulations.
- Train recruiters and HR staff on how to comply with the new requirements.
Most importantly, consult with inhouse attorneys or external legal experts to ensure nothing has been misinterpreted, overlooked or worse, completely ignored.