When to Consider an Applicant’s Criminal History

In 2015, the New York City Commission on Human Rights enacted the Fair Chance Act that would prohibit employers from asking potential applicants if they have been convicted of a crime until after the employer has issued a conditional offer to the applicant. This law was passed to ensure that job applicants were evaluated on their merits and not be barred due to their criminal history.

As a result of the foregoing, employers may no longer place job advertisements containing the statements like, “no felonies” or “must pass background check”. Moreover, employers can neither inquire about criminal history on job applications nor ask any questions about criminal history during job interviews. However, once the employer makes the conditional job offer, it may inquire about the applicant’s conviction history.

If after reviewing an applicant’s conviction history the employer decides to withdraw its offer of employment, the employer must provide the applicant with a written explanation that connects the criminal history to the job duties and explain how it creates an unreasonable risk. Furthermore, the employer must hold the job open for the applicant for three days in order to allow the applicant to discuss the issue and address any incorrect information. To help employers in these situations, the New York City Commission on Human Rights has provided this Fair Chance Notice to send to the applicant.

If you would like more information on this issue or if your business has been named in a discrimination action, please contact Nicoll Davis & Spinella LLP. At Nicoll Davis & Spinella, our team of lawyers experienced in compliance can help effectively minimize your company’s risk and avoid the unnecessary liabilities many businesses unknowingly face. Please consider our Outside General CounselTM program as a solution to help effectively address your company’s compliance issues. For more information, call us at 201-712-1616 or (212) 972-0786, or contact us online.