Currently pending before the New York City Council (the
"Council") are two bills that could significantly affect hiring processes
utilized by New York City employers. The
Chance Act and the Stop
Credit Discrimination in Employment Act would restrict what employers may
inquire about regarding job applicants' criminal and consumer credit
histories. If passed, the bills would
require employers to review and potentially revise their hiring practices,
including the use of criminal background searches and credit checks.
Introduced in April 2014, the Fair Chance Act (the "FCA"),
which has been described as "ban-the-box" legislation, would amend the New York
City Human Rights Law (the "NYCHRL") to prevent pre-employment inquiries into
an applicant's conviction or arrest history.
The New York Correction Law § 23-A currently requires employers to
conduct a multi-factor analysis before refusing to hire an applicant based on
his or her criminal history. This
analysis considers, among other things, any bearing the criminal offense would
have on the applicant's fitness or ability to perform the duties related to the
position, the time that has elapsed since the offense, the applicant's age at
the time of the offense, the seriousness of the offense, any information
produced on behalf of the applicant relating to his or her rehabilitation and
good conduct, and the employer's legitimate interest in protecting property and
the safety and welfare of specific individuals or the general public. The employer may only refuse to hire an
applicant based on his or her criminal conviction if there is a direct
relationship between the prior criminal offense and the specific job sought, or
if hiring the individual would pose an unreasonable risk to property or others'
The FCA extends these protections by requiring that
employers first deem an applicant qualified for a job and make a conditional
job offer before inquiring into an applicant's criminal history or conducting
any criminal history search. The bill
defines "inquiries" to include questions in a job application or in a
standalone document, searches of publicly available records or consumer
reports, or even mentioning that a background check will be required. However, employers who are legally required
to conduct a criminal history search may inform applicants that the job is
subject to a background check and that the employer is prohibited from
employing individuals with certain criminal convictions.
The FCA also provides that if an employer intends to take an
adverse employment action based on a criminal inquiry, it must provide the
applicant with a written copy of the criminal inquiry and the multi-factor
analysis the employer is required to conduct.
The applicant must then be provided a minimum of seven business days to
respond, during which time the position must remain open. Once the response time has lapsed, the
employer no longer needs to wait for an answer.
An employer who violates these new requirements could be liable for a
minimum of $1,000 in damages and is presumed to have engaged in unlawful
discrimination, which can only be overcome with "clear and convincing evidence"
demonstrating otherwise. Further, an
applicant may not be disqualified from prospective employment based on a
response to an unlawful inquiry or statement under the FCA. Employees who claim that their rights have
been violated under the FCA would be entitled to a private cause of action.
Also pending before the Council is the Stop Credit
Discrimination in Employment Act (the "Act"), which would amend the NYCHRL to
prohibit employers from requesting or using for employment purposes information
contained in an applicant's consumer credit history or to retaliate or
otherwise discriminate against an applicant based on the applicant's credit
history. The Act defines "consumer
credit history" as "any information bearing on an individual's credit
worthiness, credit standing, or credit capacity, including but not limited to
an individual's credit score, credit account and other consumer account
balances and payment history." However,
the Act would not apply to employers that are required under state or federal
law to use an individual's consumer credit history for employment purposes.
Employers should monitor the Council's legislative activity
on both bills and, if they are passed, review and revise hiring policies and
This post was authored by Matt Lampe, Emilie Hendee, and
Sharon Cohen of Jones Day. The
views and opinions expressed herein are those of the authors and do not
necessarily reflect the views of Jones Day or the New York State Bar