§ 2-04 Prohibitions on Discrimination Based on Criminal History.
RCNY § 2-04
47 RCNY § 2-04(a) through 2-04(g) relate to prohibitions on discrimination in employment only. 47 RCNY § 2-04(h) relates to prohibitions on discrimination in licensing only. 47 RCNY § 2-04(i) relates to enforcement of violations of the Human Rights Law under this section in employment and licensing.
(a)Per Se Violations. The Commission has determined that the following are per se violations of §§ 8-107(10), (11) or (11-a) of the Human Rights Law (regardless of whether any adverse employment action is taken against an individual applicant or employee), unless an exemption listed under subdivision (g) of this section applies: (1) Declaring, printing, or circulating, or causing the declaration, printing, or circulation of, any solicitation, advertisement, policy or publication that expresses, directly or indirectly, orally or in writing, any limitation or specification in employment regarding criminal history. This includes, but is not limited to, advertisements and employment applications containing phrases such as: "no felonies," "background check required," and "must have clean record." (2) Using applications for employment that require applicants to either grant employers permission to run a background check or provide information regarding criminal history prior to a conditional offer.
(3)Making any statement or inquiry relating to the applicant's pending arrest or criminal conviction before a conditional offer of employment is extended.
(4)Using within the City a standard form, such as a boilerplate job application, intended to be used across multiple jurisdictions, that requests or refers to criminal history. Disclaimers or other language indicating that applicants should not answer specific questions if applying for a position that is subject to the Human Rights Law do not shield an employer from liability.
(5)Failing to comply with requirements of § 8-107(11-a) of the Human Rights Law, when they are applicable: (1) to provide the applicant a written copy of any inquiry an employer conducted into the applicant's criminal history; (2) to share with the applicant a written copy of the employer's Article 23-A analysis; or (3) to hold the prospective position open for at least three business days from the date of an applicant's receipt of both the inquiry and analysis.
(6)Requiring applicants or employees to disclose an arrest that, at the time disclosure is required, has resulted in a non-conviction as defined in 47 RCNY § 2-01.
(b)Criminal Background Check Process. An employer, employment agency, or agent thereof may not inquire about an applicant's criminal history or request permission to run a criminal background check until after the employer, employment agency, or agent thereof makes the applicant a conditional offer. At no point may an employer, employment agency, or agent thereof seek or consider information pertaining to a non-conviction.
(1)Employers, employment agencies, or agents thereof may not engage in any of the following actions prior to making a conditional offer to an applicant, unless otherwise exempt pursuant to 47 RCNY § 2-04(f): (i) Seeking to discover, obtain, or consider the criminal history of an applicant before a conditional offer of employment is made.
(ii)Expressing any limitation or specifications based on criminal history in job advertisements. This includes, but is not limited to, any language that states or implies "no felonies," "background check required," or "clean records only." Solicitations, advertisements, and publications encompass a broad variety of items, including, but not limited to, employment applications, fliers, hand-outs, online job postings, and materials distributed at employment fairs and by temporary help firms and job readiness programs.
(iii)Using an application that contains a question about an applicant's criminal history or pending criminal case or requests authorization to perform a background check.
(iv)Making any inquiry or statement related to an applicant's criminal history, whether written or oral, during a job interview.
(v)Asserting, whether orally or in writing, that individuals with a criminal history, or individuals with certain convictions, will not be hired or considered.
(vi)Conducting investigations into an applicant's criminal history, including the use of publicly available records or the Internet for the purpose of learning about the applicant's criminal history, whether such investigations are conducted by an employer or for an employer by a third party.
(vii)Disqualifying an applicant for refusing to respond to any prohibited inquiry or statement about criminal history.
(viii)In connection with an applicant, searching for terms such as, "arrest," "mugshot," "warrant," "criminal," "conviction," "jail," or "prison" or searching websites that purport to provide information regarding arrests, warrants, convictions or incarceration information for the purpose of obtaining criminal history.
(c)Inadvertent Discovery or Unsolicited Disclosure of Criminal History Prior to Conditional Offer. Inadvertent discovery by an employer, employment agency, or agent thereof or unsolicited disclosure by an applicant of criminal history prior to a conditional offer of employment does not automatically create employer liability. Liability is created when an employer, employment agency, or agent thereof uses the discovery or disclosure to further explore an applicant's criminal history before having made a conditional offer or uses the information in determining whether to make a conditional offer.
(d)Information Regarding Conviction History Obtained After a Conditional Offer. After an employer, employment agency, or agent thereof extends a conditional offer to an applicant, an employer, employment agency, or agent thereof may make inquiries into or statements about the applicant's conviction history. An employer, employment agency, or agent thereof may (1) ask, either orally or in writing, whether an applicant has a criminal conviction history; (2) run a background check or, after receiving the applicant's permission and providing notice, use a consumer reporting agency to do so; and (3) once an employer, employment agency, or agent thereof knows about an applicant's conviction history, ask them about the circumstances that led to the conviction and gather information relevant to the Article 23-A factors. Upon receipt of an applicant's conviction history, an employer, employment agency, or agent thereof may elect to hire the individual. If the employer, employment agency, or agent thereof does not wish to withdraw the conditional offer, the employer, employment agency, or agent thereof does not need to engage in the Article 23-A analysis.
(e)Withdrawing a Conditional Offer of Employment or Taking an Adverse Employment Action. Should an employer, employment agency, or agent thereof wish to withdraw its conditional offer of employment or take an adverse employment action based on an applicant's or employee's conviction history, the employer, employment agency, or agent thereof must (1) engage in an Article 23-A analysis, and (2) follow the Fair Chance Process. Employers, employment agencies, or agents thereof must affirmatively request information concerning clarification, rehabilitation, or good conduct while engaging in the Article 23-A analysis.
(i)An employer, employment agency, or agent thereof must consider the following factors in evaluating an applicant or employee under the Article 23-A analysis: (A) That New York public policy encourages the licensure and employment of people with criminal records; (B) The specific duties and responsibilities necessarily related to the prospective job; (C) The bearing, if any, of the conviction history on the applicant's or employee's fitness or ability to perform one or more of the job's duties or responsibilities; (D) The time that has elapsed since the occurrence of the criminal offense that led to the applicant or employee's criminal conviction, not the time since arrest or conviction; (E) The age of the applicant or employee when the criminal offense that led to their conviction occurred; (F) The seriousness of the applicant's or employee's conviction; (G) Any information produced by the applicant or employee, or produced on the applicant's or employee's behalf, regarding their rehabilitation and good conduct; (H) The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
(2)The Fair Chance Process: If, after an employer, employment agency, or agent thereof determines that either the direct relationship or unreasonable risk exemption applies, the employer, employment agency, or agent thereof wishes to revoke the conditional offer or take an adverse employment action, the employer, employment agency, or agent thereof must first (1) provide a written copy of any inquiry made to collect information about criminal history to the applicant, (2) provide a written copy of the Article 23-A analysis to the applicant, (3) inform the applicant that they will be given a reasonable time to respond to the employer's concerns, and (4) consider any additional information provided by the applicant during this period.
(f)Temporary Help Firms.
(g)Exemptions.
(h)Licenses, Registrations, and Permits.
(j)Criminal Record Discrimination in Obtaining Credit. No person may ask about or take any adverse action based on the nonconviction history of an individual in connection with an application or evaluation for credit.
(k)Employers Seeking the Work Opportunity Tax Credit ("WOTC"). Employers who wish to claim the WOTC credit are not exempt from this chapter or the Fair Chance Act. Employers may, however, require an applicant to complete IRS form 8850 and U.S. Department of Labor Form 9061 before a conditional offer is made so long as the information gathered is used solely for the purpose of applying for the WOTC. (Added City Record 7/6/2017, eff. 8/5/2017; amended City Record 11/24/2017, eff. 12/24/2017)
