Article: New York City and State Restrictions on Use of Criminal Records in Hiring

On June 29, at a signing ceremony in City Hall, New York City mayor Bill DeBlasio hailed a new City Council law, the “Fair Chance Act,” as a way to require city-based employers with four or more workers to take into account job applicants’ qualifications, rather than to screen them out early in the hiring process on the basis of a past criminal record. The main City Council sponsor of the bill, which passed early in June on a 45-5 vote, called the newly signed measure, which takes effect on October 27, not merely an employment bill, but also both a public safety measure and a criminal justice bill as well.

Like similar measures enacted in some other states, including New Jersey, and a number of cities and counties, the new city law is a “ban the box” measure, barring public or private employers from asking job applicants whether they have a criminal history until after the employer has made them a conditional offer of employment, thus banning from employment applicants the box for applicants to check if they have an arrest or conviction record. The city’s new “ban the box” measure further bars employers from searching publicly available court records and document searches covered by the Fair Credit Reporting Act (a separate New York City law set to take effect in September generally bars employers from using credit checks in hiring).

The new city “ban the box” law mandates that employers document any need for early-stage access to applicants’ criminal records, and furnish written statements and back-up documents to would-be workers denied employment because of a criminal records background check. It preserves, however, existing laws requiring criminal records checks for some employers, such as law enforcement agencies, and those serving groups, such as children, the elderly and the disabled, particularly vulnerable to abuse.

Even before the newly signed measure, however, New York City had in place numerous restrictions on employer use of criminal records. In 2011, former mayor Bloomberg issued an executive order forbidding city agencies from asking job applicants about prior criminal convictions during an initial interview or on any preliminary work application. In addition, inquiries in later interviews can only ask about pending charges, and unsealed misdemeanor and felony convictions.

New York state corrections law contains other restrictions. Article 23-A prohibits some criminal background questions by public employers and private employers with a total four or more workers, and generally forbids denial of licenses or employment on the grounds of one or more previous criminal convictions. The law expressly identifies New York public policy as encouraging employment and licensure of persons with previous criminal convictions.

Under this provision of state corrections law, a prior criminal conviction can justify denial of employment or licensure only if there is “a direct relationship” between a prior offense and the specific employment or license, or if it would pose an “unreasonable risk” to property or the safety of specific persons or the general public. The protections in Article 23-A do not apply to positions in law enforcement, those in which another law bars a license or job to ex-offenders, or to applicants who made intentional misstatements in their applications.

Under current law, a job applicant in the state of New York who’s denied employment or a license has 30 days thereafter to request a written statement of the reasons for the action. And both city and state job bias laws already outlaw employer discrimination based on previous convictions against job applicants based, unless a direct relationship exists between the former offense and the particular job, or hiring the applicant would present an unreasonable risk to property, specific persons or the general public.