The Fair Chance Act
In theory, our criminal justice system is based on the notion that once someone serves the penalty for a crime, he or she should be given a second chance. Unfortunately, however, many employers discriminate against applicants with criminal records even when they have shown extensive rehabilitation efforts and good conduct since the offense in question. In order to address this inequality and roadblock to gainful employment, New York City has enacted an ordinance restricting the instances in which an employer can ask about an applicant’s criminal history. Some sources also refer to the Fair Chance Act as a ban-the-box law. This moniker is derived from many employers’ tendency to include a question on a job application asking whether the applicant has ever been convicted of a crime. The applicant must check either yes or no on the form. At Phillips & Associates, our skilled attorneys fight against employment discrimination based on criminal convictions across the five boroughs of New York City.The Rights Protected by the Fair Chance Act
Taking effect on October 27, 2015, the Fair Chance Act resembles many other legal initiatives around the country that are designed to prevent employers from discriminating against otherwise qualified applicants based on a prior criminal record. The law prohibits businesses that have at least 4 workers from asking about a potential employee’s criminal history until after the employer extends a conditional offer of employment to the applicant. The ordinance also imposes significant restrictions on hiring personnel who aim to make decisions about whether to hire or reject an applicant based on any information obtained regarding his or her criminal history.
If the employer chooses to make an inquiry about the applicant’s criminal history and identifies information that results in the employer wanting to make an adverse hiring decision, the employer must first explain why in writing and must connect the criminal record history to specific job duties or show it creates an unreasonable risk. The employer must also hold the job opportunity open for 3 days so the employee has time to discuss the issue and/or correct wrong information.
One of the biggest questions surrounding this type of law is determining what constitutes “an inquiry” on the employer’s part. Businesses can come up with clever ways to discern whether an applicant may have faced criminal legal charges, including probing about gaps on a resume or making the employee provide a chronological overview of his or her work history. Under New York City’s new ban-the-box law, the employer is prohibited from asking any questions about criminal history either verbally or in writing prior to extending a conditional offer of employment. Additionally, the employer is prohibited from conducting any sort of search of publicly available records or information regarding the applicant’s potential criminal history until after a conditional job offer.
There are some exceptions to the law. The primary exception applies to employers that have a federal, state, or local mandate to perform background checks on applicants before making a final hire. Many of these positions involve working with children, handling large sums of money or finances, or gaining access to sensitive information through a government job. Similarly, the law does not apply to police officers, law enforcement agencies, and other public peace-keeping personnel.Consult an Experienced Workers’ Rights Attorney in New York City
If you believe that you were rejected or turned away from a job opportunity based on your criminal record, you may be entitled to compensation. At Phillips & Associates, our employment discrimination lawyers understand how frustrating it can be for New York City workers to face this type of obstacle when they are trying to find employment and support a family. Our firm serves individuals throughout the five boroughs of the city, including Manhattan, Queens, and Brooklyn. We can guide you through each step of the process and make sure that your rights are asserted aggressively along the way. Call us now at (212) 248-7431 or contact us online to set up a free consultation.
PHILLIPS & ASSOCIATES
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New York, New York 10006