Many states have adopted laws prohibiting employers from using criminal histories to eliminate potential employees.
The Fair Chance Act is an addition to the New York City Human Rights Law. Under the Fair Chance Act, an employer cannot use criminal history in any employment decision. Employment decisions include:
- Hiring
- Promotions
- Raises
- Transfers
- Firing
The Fair Chance Act does not allow employers to ask about criminal histories until a conditional employment offer is made. Once the employer makes an offer of conditional employment, they can conduct a criminal history background check.
New York State’s Article 23-A states that employers are encouraged to employ people with criminal records. However, if they are using criminal histories in the employment decision, they must consider the following before withdrawing an offer of conditional employment based on criminal history:
- What are the job obligations for the position?
- Does the record affect the applicant’s ability to meet job function requirements?
- How long has it been since the conviction?
- What was the applicant’s age at the time of the illegal activity?
- What was the severity of the crime?
- Did the employee or job applicant receive rehabilitation and good conduct records?
- Will hiring or keeping the employee put the other staff members in jeopardy?
The “ban the box” laws in New Jersey and Miami prohibit employers from asking about criminal records on a job application or prior to the first interview with a job applicant. Once an employer conducts the first interview, they may ask about criminal records prior to offering a second interview.
The “ban the box” law in Philadelphia prohibits employers from asking about your criminal history until after a conditional offer of employment is made. If a record is surfaced in the background check, the employer must consider:
- The type of crime
- The time passed since the crime occurred.
- The crime in relation to the job responsibilities
- Job history, character references, and rehabilitation
If the employer withdraws a job offer, you must receive a written explanation along with a copy of the background report.
The California “ban the box” law prohibits employers with five or more employees from asking about criminal histories before a conditional offer of employment is made. In addition, employers cannot consider arrests that did not lead to convictions or any expunged or sealed criminal records. After the offer is made, an employer can conduct a criminal history screening. If a criminal history is found, the employer must consider:
- The type of crime
- The time passed since the crime occurred.
- Is the crime connected to your job responsibilities?
- Job history, character references, and rehabilitation
A qualified discrimination attorney can help you decipher your state laws and whether your company’s actions violated these rights.
Derek Smith
3 min. read
Derek Smith