New York City “Ban-the-Box” Law Amendments Take Effect July 29, 2021

New York City’s “Ban the Box” law, also known as the Fair Chance Act (FCA) that was enacted in 2015, aims to create a more inclusive work environment by prohibiting employers from discriminating against job applicants based on their arrest records, pending criminal accusations, or criminal convictions.  In January 2021, the New York City Council amended the FCA to provide additional protections to job applicants and to clarify existing requirements on employers.  The amendments will go into effect on July 29, 2021.

The amended FCA prohibits employers from considering two additional types of criminal dispositions when making employment-related decisions: pending adjournments in contemplation of dismissal (ACDs); and convictions for violations prior to sealing.  Furthermore, the amendments clarify protections available to applicants and current employees facing pending criminal cases by requiring an employer to make an individualized assessment of the relationship between the accused criminal conduct and the job.  Employers who learn that their job applicants or current employees face criminal accusations must consider whether: (i) there is a direct relationship between the accused criminal conduct and the employment sought or held by the person; or (ii) employing or continuing to employ the person would create an unreasonable risk to the employer’s property or to the safety or welfare of specific individuals or the general public.  

The amended FCA also identifies three specific circumstances when an employer can withdraw a conditional offer of employment:

  • The results of a criminal background check after the FCA process has been followed,
  • The results of a medical exam permitted by the Americans with Disabilities Act (ADA), or
  • Other information that the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.

The amended FCA requires that employers who revoke a conditional job offer demonstrate that they would not have made the offer regardless of the applicant’s criminal history. The revised Act also provides numerous additional protections for ex-offenders, including factors of the New York Corrections Law,Article 23-A, such as the applicant’s fitness or ability to perform the. work, the seriousness of the offense, and the age of the applicant when he or she committed the offense.  

As of July 2021, 36 states and more than 150 cities and counties have Ban the Box laws, according to the National Employment Law Project (NELP). Other major cities besides New York City to pass Ban the Box laws include Austin, Baltimore, Buffalo, Chicago, Los Angeles, Philadelphia, San Francisco, Seattle, and St. Louis.

“Ban the Box” laws and Second Chance Programs that help ex-offenders in the United States – an estimated 70 million people – find work will continue to evolve, according to leading global background check firm Employment Screening Resources® (ESR), which compiled the “ESR Top Ten Background Check Trends” for 2021.


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