On Wednesday, June 10, 2015, the New York City Council approved a bill that will strictly regulate how employers in New York City (with at least four employees) may conduct criminal background checks. Mayor Bill de Blasio is expected to sign the bill, which will go into effect 120 days after enactment. The bill comes on the heels of the City’s ban on most forms of applicant background credit checks, which we reported on here, and which Mayor de Blasio signed into law on May 6, 2015.
The bill received an unusual amount of media attention when it was proposed, in part due to the public support it received from Piper Kerman, author of the memoir and Netflix series Orange Is the New Black.
Essentially, the new law will prohibit employers in New York City from conducting criminal background checks until after they have extended “a conditional offer of employment” to the applicant. The law also requires certain disclosures to the applicant before withdrawing a conditional offer based on the results of a criminal background check.
Specifically, the bill provides that:
- An employer may not inquire about an applicant’s pending arrests or criminal convictions, or conduct a criminal background check, until after the employer has extended a conditional offer of employment to the applicant. A criminal background check includes “any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.”
- Before taking an adverse employment action (i.e., not hiring the applicant), the employer must:
- provide the applicant with “a written copy of the inquiry” (in a manner to be determined by the NYC Commission on Human Rights);
- perform an “analysis” under the standards set forth in the New York State Correction Law to determine whether there are lawful grounds to deny employment based on a criminal conviction, and then provide a written copy of the analysis to the applicant (in a manner to be determined by the NYC Commission on Human Rights), along with any supporting documents; and
- give the applicant three business days after receiving these disclosures to respond (and hold the position open for that period).
The law will not apply to criminal background checks required by state, federal or local law, or by self-regulatory agencies. There are also exceptions for certain types of employers (e.g., law enforcement).
The new law can be enforced in the same manner as New York City’s existing laws prohibiting employment discrimination, i.e., a complaint can be filed with the NYC Commission on Human Rights or directly in court.
If New York City employers have not already done so, the bill is an excellent reason to review background check policies and procedures to determine if they comply with the restrictive provisions of the City’s new background check rules – now among the strictest in the nation.