It is a fear that many of us do not know – searching for employment, filling out an application, or going on an interview and having to face answering “yes” to whether or not you have a criminal background. It is not uncommon for employers to eliminate candidates up front because of this response; more often than not, job seekers give up hope and may not even apply to the positions, making successful employment even more difficult. A person’s past should not dictate his or her future. For this reason, this scenario will no longer be the case in New York, and many other cities that are following suit in opening the doors for jobs seekers who have already paid their debt to society.
In June of 2015, one of the eight bills Mayor De Blasio signed into law that day that consisted of legislation making discrimination prohibited against an individual seeking employment due to his or her prior run-ins with the law.
The Fair Chance Act Explained
The Fair Chance Act, known as “ban the box” in other states with social movements seeking to pass similar legal initiatives, is a New York law that prohibits employers from asking potential candidates about their criminal record prior to making a job offer. In other words, ads, interview questions and job applications cannot ask about an applicant’s criminal background. The reasoning behind this law is to create an even playing field, where applicants are judged on their qualifications first and foremost.
Once an applicant has passed the preliminary round and has been offered employment, an employer may want to revoke the offer based upon the finding of a criminal record. Should an employer choose to take this route, it is required to take specific steps including:
- Explain its reasoning why using the Fair Chance Notice. While this form does not have to be used specifically, an employer’s notification must contain the same material substance;
- Provide a copy of any background check it conducted, or was conducted by a third-party vendor;
- Give the applicant three business days to respond;
- Provide the applicant with a copy of the criminal record information upon which it relied to make its decision. If the employer:
- used a consumer reporting agency a copy of the report must be provided;
- relied on public records (or even an internet search) a copy of these documents must also be provided.
For Job Seekers
The protections of the Fair Job Act are in effect before and after a job offer, as well as before a final employment decision. It is important for you to know that:
- Before a job offer – know that your criminal record history is off-limits at this stage, job ads cannot refer to criminal backgrounds as a disqualifier for employment, applications cannot have questions about criminal records or ask authorization for a background check.
- After a job offer – once an employer offers you conditional employment, it can ask about your criminal background; the employer may ask if you have any criminal convictions (you must disclose all), require you to authorize a background check and refuse to hire you if you do not consent. You cannot be asked about, and should not disclose, any arrest where you were not convicted and any sealed convictions. Should an employer find out about this, it cannot be used against you except if you are applying to be a peace or police officer.
- Before a final employment decision – whether or not an employer chooses to hire you it must, among other actions, do the following: (1) provide a copy of any background check conducted; (2) evaluate you by considering specific factors (and share the written evaluation); (3) hold the job open for at least three business days after communicating its decision to afford you a chance to respond. Specific factors must be considered by an employer prior to deciding not to hire a candidate. In other words, the decision cannot be based simply on the fact that a criminal record exists.
New York Employment Attorney
Do not let your past hold you back, especially when the law is on your side. The purpose of the Fair Chance Act is to help open doors for those who have paid back their debt to society and just want to work to move forward with life. The legal professionals at Ricotta & Marks, P.C. have more than two decades of combined experience handling employment law matters. These New York employment law attorneys are dedicated to protecting your livelihood. Call (347)-464-8694 today to schedule your initial case evaluation.