Think twice before asking job seekers about criminal records

Michael Volpe and Nicholas Reiter

On June 10, 2015, the New York City Council approved a new law prohibiting public and private sector employers from inquiring about a job applicant's criminal record history before making a conditional offer of employment. The new law, dubbed the "Fair Chance Act," adds New York City to a growing list of state and local jurisdictions with bans against employers' inquiries into prospective employees' arrest and conviction records.

On a statewide level, New York State had already prohibited employers from rejecting a job applicant on account of his or her conviction history unless the conviction related to the applicant's fitness to perform the job or suggested an unreasonable risk to property or public safety. Now, however, New York City employers may find themselves in hot water for merely asking about criminal history within their job applications. Below is a quick summary of what employers need to know about the new citywide law.

What does the Fair Chance Act prohibit?

Employers with four or more employees who work in New York City are now barred from inquiring about an applicant's arrest or conviction history until after the employer issues a conditional offer of employment to the applicant. Notably, the law defines an inquiry into arrest or conviction history as a written or oral question issued to the applicant, a search of public records, or performance of a background check.

What does the Fair Chance Act require of employers?

The law takes effect 120 days from Mayor Bill de Blasio's signature of approval, which by all accounts the mayor is expected to provide very soon. Beginning on that date, covered employers must follow a three-step procedure for inquiries about an applicant's criminal history:

First, the employer must issue a written copy of the inquiry in a manner to be determined by the New York City Commission on Human Rights (the "Commission"). Although the law is mum about whether the commission will issue a mandatory inquiry form or simply prescribe requirements for such inquiries, employers will at least need to tailor their criminal history inquiries accordingly.

Second, before a conditional offer of employment is revoked, employers must provide the applicant a written copy of its analysis of the criminal history, including the reason(s) the conditional job offer was revoked and the supporting documents that formed the basis of the employer's decision, e.g., the criminal history results.

Finally, the employer must allow the applicant a reasonable amount of time—no less than three business days—to respond to the revocation of the job offer, during which time the employer must hold the position open for the applicant.

What penalties may an employer face for violations?

The law adds illegal inquiries (as described above) or improper consideration of an applicant's criminal history to a long list of discriminatory employment practices prohibited under New York City's Administrative Code. Like other forms of discrimination, applicants who prove an employer violated the Fair Chance Act may file an administrative claim or lawsuit in which they seek compensatory damages, punitive damages, and reasonable attorneys' fees. A plaintiff may also seek injunctive relief in the form of an order requiring he or she be hired, among other things. Even worse for large employers, these types of claims often lend themselves to costly class actions because of the relatively high volume of applications received.

What should employers do now?

As a preliminary matter, covered employers should take immediate steps to remove questions on their job applications regarding criminal history. Employers should also train management and other personnel who conduct job interviews to avoid asking questions regarding arrest or conviction records. Once the law takes effect, employers will need to further ensure that their written criminal history inquiries comply with the commission's requirements.

More than anything, however, the Fair Chance Act raises the bar for whether an employer has properly considered an applicant's conviction record when revoking a conditional job offer. Under New York State law, employers may not reject a candidate's job application based upon a criminal conviction unless there is a direct relationship between the criminal offense and the employment sought or, alternatively, hiring the applicant would involve an unreasonable risk to property or to the safety of others.

Prior to the Fair Chance Act, employers could review an applicant's criminal history but still reject the application for reasons unrelated to the applicant's criminal conviction. So long as the employer could prove it would have rejected the applicant regardless of his or her criminal conviction, the employer would have a strong defense against a discrimination lawsuit based upon the applicant's conviction. Now, under the Fair Chance Act, employers must issue a conditional job offer before even inquiring about an applicant's criminal history. This requirement eliminates the "mixed motive" question previously relevant to conviction discrimination lawsuits, because the only factor left for consideration when revoking the conditional job offer will be the applicant's criminal history.

Other jurisdictions outside New York City have either already implemented or are considering similar prohibitions against employers' criminal record inquiries. As with most new laws that impose additional requirements on employers, one of the best ways for employers to minimize legal risk is to consult with employment attorneys regarding their internal forms and procedures. In particular, employers should evaluate their policies and practices for job applications, train their employees and consult with legal counsel regarding any job offer revocations based upon an applicant's criminal history.

Michael Volpe chairs the labor & employment practice at Venable LLP, and Nicholas Reiter is an associate at Venable.