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Reminder: New York City Fair Chance Act Prohibits Ads Which Limit Employment Based on Criminal History

09/01/18

Author: ADP Admin/Thursday, August 30, 2018/Categories: State Compliance Update, New York

Overview: As a reminder, the New York City Fair Chance Act (“FCA”) specifically prohibits solicitation, advertisement or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. The FCA makes it an unlawful discriminatory practice for most employers, labor organizations and employment agencies to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. If an employer wishes to withdraw its offer, it must give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.

Effective Date: October 27, 2015

Details:
The FCA prohibits employers from expressing any limitation or specification based on criminal history in their job advertisements. Declaring, printing, circulation or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment, which expresses, directly or indirectly, any limitation, or specification in employment based on a person's arrest or criminal conviction or criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” “clean records only,” or “must have clean record.” Similarly, stigmatizing language, like "ex-felon" and "former inmate," may not be used. Solicitations, advertisements and publications may include language that welcomes people with criminal records, however. For example, solicitations, advertisements, or publications that include language such as "People with criminal histories are encouraged to apply," and "We value diverse experiences, including prior contact with the criminal legal system" are permissible.

Solicitations, advertisements and publications encompass a broad variety of items, including, without limitation, employment applications, fliers, handouts, online job postings and materials distributed at employment fairs and by temporary help firms and job readiness organizations. Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check.

Action Required: Employers in New York City should review all job solicitations, advertisements and publications to ensure they are free from any limitation or specification based on criminal history.

Please be sure to contact your Human Resources Business Partner if you have any questions.

This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.

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