Amendments to NYC Ban the Box Law Slated to Take Effect

By Douglas Lipsky

In January, the New York City Council enacted several amendments to the Fair Chance Act (FCA) that take effect on July 29, 2021. The amendments expand the protections to job applicants and employees against criminal background checks by employers. 

While the so-called Ban the Box law is designed to provide a fair chance to individuals who have been entangled in the criminal justice system, it takes an arrests and convictions employment discrimination attorney to protect your rights. Let’s take a look at the amendments to the FCA that are on tap. 

The Fair Chance Act at a Glance

The FCA prohibits covered employers from:

  • Inquiring about a job applicant’s criminal history
  • Conducting a criminal background check before making a conditional offer of employment. 

Additionally, employers cannot reference criminal background checks or indicate any employment limitations based on an applicant’s criminal history in a job application, ad, or posting. The FCA also bars employers from withdrawing conditional offers due to an applicant’s criminal history without going through the Fair Chance Process.

This involves an assessment to determine whether (1) the criminal history is directly related to the position, or (2) hiring the applicant would create an unreasonable safety risk. This analysis must consider the eight “Fair Chair Factors” enumerated under the FCA. Finally, the law requires employers to disclose the results of such background checks to applicants and provide them with a reasonable time to respond. 

An Overview of the Amendments to the Fair Chance Act

In short, the amendments broaden the scope of the Ban the Box law in several ways. Previously, the FCA only applied to job applicants. Now, the law has been expanded to cover current employees. Also, the term “ employee” under the New York City Human Rights Law (NYCHRL) was expanded in January 2020 to cover independent contractors, including current and prospective freelancers.

In addition to prohibiting employers from inquiring about criminal convictions when making employment decisions, the law now bars inquiries into pending arrests and criminal accusations as well. The amendments also prohibit employers from making inquiries or basing employment decisions on:

  • Violations (an offense for which no more than 15 days imprisonment can be imposed)
  • Non-criminal offenses
  • Adjournments in contemplation of a dismissal

The amendments also slightly modify the factors an employer must consider before withdrawing a conditional offer to include the applicant’s age at the time of the offense and any history of rehabilitation and good conduct.

Finally, before withdrawing a conditional offer from an applicant or taking adverse action against a current employee based on that individual’s criminal history, an employer must go through a modified version of the Fair Chance Process.

The Bottom Line

In sum, amendments to the FCA expand the law’s coverage to include (1) current employees in addition to job applicants and (2) pending arrests and criminal accusations in addition to convictions and (3) modify the Fair Chance Process. Despite these expanded legal protections, the best way for employees to protect their rights under the amended Ban the Box law is to consult with an experienced New York City employment lawyer. 

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.