NYC: New legislation now limits the ability of employers to carry out criminal background checks (The Fair Chance Act) on potential employees and applicants, this legislation kicks in October 27. The act is applicable to all employers comprising 4 or more persons and has amended the NYC Human Rights Law which prohibits employers access to applicant’s criminal history until such time that the employer or firm has made an offer of employment.

The new legislation in respect of criminal background checks makes it unlawful for an employer to take adverse action or refuse employment because the applicant/potential employee is found to have a criminal record. An employer can neither determine the applicant’s demeanor or character and that they may lack moral character determined by a conviction. Employees may also not deny employment irrespective accusations or arrests that did not bring about a conviction.

The act affects employers in many ways. Employers can not imply limitations in adverts for employment that relate to convictions and arrests. During initial processing employers can not make enquiries related to criminal background checks. This limitation is extended over and beyond a criminal past and criminal background checks are prohibited and/or searching any other public records.

Only at such time that a conditional offer has been made can the employer dig deeper in respect of the potential employee’s conviction or arrest record. The employer has a number of steps that must be followed should, subject to criminal background checks, they wish to then revoke the offer of employment and records along with analysis must confirm a number of points. The employment on offer requires a correlation to the criminal offense. Employment would place an unreasonable risk to the public, individuals or property.

Certain employers are exempted from the law. Positions that specifically require criminal background checks pursuant to any federal, state, or local law are exempt. Law enforcement agencies, including, for instance, the police department and district attorneys’ offices, also are exempt. The New York City Commission on Human Rights will handle complaints and enforce the law. Employers in NYC should review and confirm their ‘criminal background checks’ references in all ads and remove any or all references to ‘criminal history’.

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