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NYC Example of Ban-the-Box Law Evolution at a Municipal Level


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NYC Example of Ban-the-Box Law Evolution at a Municipal Level

When Ban-the-Box laws came into existence 20 plus years ago they were generally enacted at a statewide level. Over time cities took up the call for legislation regarding the use of criminal history reports, specific to their use during the pre-employment process and as related to the question of a criminal history on employment applications.

Larger cities enacted ban-the-box laws and, over time, continued to update and expand the scope of this type of legislation. One example of this evolution with a ban-the-box law is New York City.

The city’s initial law came into existence in 2015 but recently took action to improve the law, and these changes take effect in July 2021.

From the National Law Review’s website on January 29, 2021:

On January 10, 2021, amendments to the New York City Fair Chance Act (“FCA”) – New York City’s “ban-the-box” law – were passed into law. The amended FCA will significantly expand employment protections for applicants and employees with criminal backgrounds, including convictions, charges, and arrests. (1)

One of the key areas on the newly expanded law regards the question of “non-pending arrests” or “criminal accusations.”

From JDSupra.com on January 12, 2021:

It is unlawful to either make any inquiry about non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications or sealed offenses, when such an inquiry would violate the New York State Human Rights Law. Currently, the FCA prohibits denying employment on these bases, but does not prohibit inquiries about such information. (2)

Adam Almeida, President and CEO of CriminalBackgroundRecords.com, states: “Every jurisdiction can have a law that is unique and finely nuanced. Without a federal law governing the use of criminal history confusion can be created with different laws and cause considerable concern for hiring managers and HR Departments.”

The new and expanded protections for employees under New York City’s expanded Fair Chance Act are numerous.

From the National Law Review’s website on January 22, 2021:

The amended Fair Chance Act expands employee protections in the following ways:

New York City employers will now be:

  • Required to conduct the Fair Chance Process when seeking to act on a pending arrest or other criminal accusation.
  • Required to undergo the Fair Chance Process when seeking to rescind a promotion or transfer, or when ending the employment of a current employee.
  • Required to apply the Fair Chance Act to independent contractors and freelancers.
  • Prohibited from inquiring about specific types of criminal history at any point, including the employee/applicant’s (1) violations, (2) non-criminal offenses, (3) non-pending arrests or criminal accusations, (4) adjournments in contemplation of dismissal, (5) youthful offender adjudications or (6) sealed offenses. (3)

Almeida concludes: “The expansion of New York City’s Ban-the-Box law serves as a great example to the overall complexity of such a law as well as the willingness to expand and change law. Employers should take immediate note and work with a well-qualitied third-party pre-employment background screening agency in order to remain compliant with existing as well as changing law.”

CriminalBackgroundRecords.com is a third-party employment screening company, an advocate of SHRM, a member in good standing with the PBSA (Professional Background Screening Association) and for over 17 years has maintained an A+ Rating with the BBB (Better Business Bureau). The company has highly trained operators well versed in the needs and requirements of companies and organizations large and small utilizing public records, such as criminal background records, as part of a hiring process. Assisting companies in maintaining full compliance under the law is a central tenet of all client relationships with CriminalBackgroundRecords.com.

Notes:

(1) natlawreview.com/article/new-york-city-expands-its-ban-box-law

(2) jdsupra.com/legalnews/2021-employment-law-spotlight-new-york-2307634/

(3) natlawreview.com/article/amendment-to-new-york-city-s-fair-chance-act-further-prohibits-employers-basing

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