{3:06 minutes to read} The use of conviction records to make hiring decisions has come under increasing scrutiny in recent years. In April 2012 the Equal Employment Opportunity Commission (EEOC) issued new guidance on the subject.[1] And “Ban the Box” legislation has been creeping its way through the country for several years now, with multiple states and local governments enacting legislation to prohibit employers from inquiring about conviction records on job applications.
New York City has now jumped into the fray. The “Fair Chance Act” is New York City’s attempt to level the playing field for job applicants with conviction records, by making it illegal for employers in most instances to ask about the criminal history of its job applicants. This prohibition applies not only to job applications (where many employers routinely inquired about past convictions), but to all phases of the hiring process prior to the time a conditional offer is made.
“Having a past conviction obviously should not prevent someone from being able to put food on the table or pay rent,” Councilman and Sponsor of the legislation Jumaane Williams told the Daily News.[2] “We want to make sure that people feel hopeful. They’ve paid their dues to society. We need to provide a pathway for them.”[3]
According to the Fair Chance Act’s sponsorship website if, after receiving information regarding the applicant’s record, the employer no longer wants to employ the applicant, the employer must explain why and provide a copy of the record. The position is then held open for at least 3 days so the employer and applicant can engage in an interactive discussion, considering the employer’s requirements and the applicant’s evidence of good conduct. This time also allows the applicant to question any inaccuracies on the record.
While this new law offers greater opportunity to those with conviction records, it does not ban background checks, and it does not alter New York State law (New York Correction Law, Section 751, et seq.), which permits employers to deny employment to workers with conviction histories that are directly related to the job or pose an unreasonable risk. The Fair Chance Act also excludes from coverage employers that are required by law to conduct background checks and exclude people with specific convictions.
New York City employers will need to review their job application and search processes in order to comply with this new law. Those who currently ask applicants about their criminal history prior to making a conditional offer will need to alter this practice, unless excluded from the law.
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