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Tuesday, December 11, 2018

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New York City 'ban-the-box' law among the nation's strongest
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New York City 'ban-the-box' law among the nation's strongest

New York City's Fair Chance Act (FCA) is one of the nation's most comprehensive "ban-the-box" laws restricting employers' use of criminal history in the hiring process.

The act makes it illegal for most New York City employers to inquire about the criminal record of candidates before making a job offer, allowing the applicant to be judged on their skills and other qualifications. In addition, companies are prohibited from referring to criminal history in job postings, applications or during the interview process itself.

Any organization revoking a job offer based on criminal record must explain why using a Fair Chance Notice, which includes the factors that led to the decision and how a candidate's criminal background could impact duties specific to the position. Per the FCA, the employer must also provide applicants with a copy of the background check it used to make the hiring decision, and give that individual three business days to respond.

The New York City Commission on Human Rights released its FCA guidelines in November 2015. Final regulations took effect this August, expanding FCA requirements and making it more difficult for employers to screen hires whose criminal history may impact job performance or present an unreasonable risk to their business.

The commission recently issued an interpretation of the law prohibiting businesses from conducting a post-conditional offer background check that includes both criminal and non-criminal components. For example, a background check that includes criminal history along with an employment verification and drug screening violates the FCA, as a criminal check should only be made following all other employment-related checks.

Though New York City employers should educate themselves on this interpretation of the law, it is unclear if a two-step background check process will be ultimately enforced, according to the Seyfarth Shaw law firm, which has been in discussions with the commission regarding the FCA.

In November, the commission announced charges against a dozen businesses for violating the FCA, among them Estée Lauder and Family Dollar. The charges were the result of evidence collected by commission officials following tips and complaints.

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