The changes are the latest in the city’s expansion of “Fair Chance Act” protections, which were designed to maximize job opportunities for qualified workers with criminal histories unrelated to their work. Before Thursday, only job applicants were covered by the law; it now applies to existing employees, too.
Starting Thursday, New York City job seekers have additional protections under the city’s Human Rights Law, which now bars employers from automatically rejecting applicants who have been arrested but not charged with a crime, those charged with non-criminal violations—like disorderly conduct or trespassing—or who have criminal cases that are ultimately dismissed.
The updated law, which applies to both current employees and independent contractors, requires employers to conduct individualized assessments of applicants and employees who fall into any of the above categories. An employer must examine whether an applicant or employee’s criminal history is relevant to the work before making a decision, using a seven-factor matrix that evaluates the person’s conduct, rehabilitation, and job performance.
The changes are the latest in the city’s expansion of “Fair Chance Act” protections, which were designed to maximize job opportunities for qualified workers with criminal histories that are unrelated to their work. Before Thursday, only job applicants were covered by the law; it now applies to existing employees, too, like those subject to regular background checks.
“In sort of the broadest terms, what the law does is ensure that people are protected from employment discrimination, no matter what kind of contact they have with the criminal justice system,” said Paul Keefe, one of the authors behind the 2015 Fair Chance Act and a supervising attorney at the city’s Commission on Human Rights, which enforces the city’s human rights laws. The Commission worked on 75 cases involving discrimination based upon criminal history in the last fiscal year, officials said.
The goal is to ensure that contact with the criminal legal system doesn’t disrupt employment, especially since most criminal cases in the city do not result in conviction, said Melissa Ader, supervising attorney of the Worker Justice Project of the Legal Aid Society, which provided advice or legal assistance to workers in around 1,200 criminal record discrimination matters in the last year.
“In approximately 80 percent of adult criminal cases in New York City, the person charged is never convicted of a crime,” Ader said.
“Most often what we see is somebody who’s charged with assault, let’s say, and then the case is dismissed, or somebody is charged with petit larceny or grand larceny, and the case is resolved with a plea to disorderly conduct and is eventually sealed,” she added. “It is extremely common for these cases to result either in dismissal or in a resolution that’s a non-criminal disposition.”
Existing city and state law safeguarded workers from arbitrarily being denied work because of a criminal conviction, unless there was a direct relationship between the conviction and the job.
Still, legal experts said, that did not completely prevent job discrimination.
“The original Fair Chance Act was necessary because it had been illegal since 1976 for employers to discriminate against people based upon [criminal] history,” said Keefe, of the city Human Rights Commission. “But if you talk to job seekers with criminal history about that, that would be news to them, since employers did it all the time. And the way they were able to do it is to be able to ask, at any time from the jump, ‘Do you have a criminal record or not?’ on an application.”
By “banning the box” in 2015, employers were tasked with considering an applicant more holistically, weighing criminal history at the very end of the hiring process. Under the Fair Chance Act, a company also has to “show its work,” before coming to a decision about whether or not to hire an employee, Keefe said.
The applicant—and, starting Thursday, the current employee—is also entitled to a copy of the criminal background check used to make that determination.
Of course, employers can still refuse to hire an applicant or dismiss an employee who has a relevant criminal history, provided they undertake the individualized analysis required by law.
“A good example is somebody who has a very recent driving while intoxicated conviction and drives a school bus,” Ader said. “In that case there is a direct relationship between the job and and the conviction, of course, and I think that that person should aim to find a job that does not involve driving school buses.”
Have you experienced discrimination related to your criminal history? Contact the city Commission on Human Rights directly at (212) 416-0197, or here, on its website.