Criminal Background Checks

Widely known as “Ban the Box” laws, California is among the many jurisdictions that have adopted laws limiting the use of criminal background checks in evaluating job candidates. Enacted in 2018, California’s Fair Chance Act generally prohibits employers, with five or more employees, from asking a job candidate about their conviction history before making a conditional job offer. Among other requirements, the Fair Chance Act also places an affirmative duty on employers to provide requisite notices to candidates and to evaluate several factors before withdrawing a job offer due to a candidate’s criminal history. Employers must also provide candidates with the opportunity to explain or provide mitigating information before making a final decision to rescind a job offer. In October 2023, California amended the Fair Chance Act to bolster these notice and evaluation requirements. The 2023 amendment also increased potential employer liability for failure to properly notify and evaluate a job candidate’s criminal history. Proposed legislation in California aims to place stringent requirements on when employers can request a criminal background check in the first instance and how the information obtained must be evaluated. Continue Reading Proposed California legislation may effectively ban criminal background checks

Back in 2015, New York City joined the “Ban the Box” bandwagon and passed a law that delays when criminal background checks can be run on most Big Apple job applicants. Specifically, the Fair Chance Act (FCA) prohibits NYC employers from inquiring about a job applicant’s criminal conviction history until after a conditional offer of employment is extended and requires that employers undertake a multi-step process if they want to rescind a job offer based on the results of a criminal history inquiry.

Against this backdrop, on January 10, 2021, the New York City Council passed important amendments to the FCA, which amendments went into effect July 29, 2021. As detailed below, the amendments significantly expand the scope of the FCA and impose additional affirmative obligations on New York City employers.
Continue Reading Sweeping amendments to New York City’s “Ban the Box” law are now in effect

Today’s New York employment law landscape is increasingly dynamic, with a constant stream of newly issued legislation and judicial opinions. To keep our readers current on the latest developments, we will share regular summaries of recent developments affecting Empire State employers. Here’s what happened in October and November 2015:

NYC Agency Issues Guidance on New Criminal Background Check Law

As we previously reported, a new law took effect in NYC on October 27 that, subject to a few narrow exemptions, bars employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended (the Law). On November 5, just days after the Law took effect, the NYC Commission on Human Rights (NYCCHR) – the agency tasked with enforcing the Law – issued interpretive guidance on it. The guidance clarifies some of the Law’s inherent ambiguities, but also seems to expand its protections.
Continue Reading New York Employment Law Roundup: October & November 2015

Less than two months after the effective date of a new law barring employers’ use of credit checks, another new law restricting the pre-employment process takes effect in New York City today, October 27, 2015 (the Fair Chance Act or the Act). As we previously reported here, the Act prohibits employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended. The term “inquiry,” as defined in the Fair Chance Act, includes questions posed to the job applicant him/herself, as well as pre-offer searches of public records and certain consumer reports.

In addition, for employers that intend to take an adverse employment action based on a criminal inquiry made after a conditional offer is extended, the Fair Chance Act prescribes a rigorous notice procedure:

  • First, the employer must provide a copy of the relevant inquiry to the job applicant (in a manner to be determined by the city’s fair employment practices agency, the NYC Commission on Human Rights (NYCCHR)).
  • Next, the employer must perform the analysis set forth in Article 23-A of the State Correction Law to determine whether the applicant’s criminal past warrants disqualification from employment.  The employer must then provide a copy of its analysis to the applicant. Late last week, the NYCCHR published a template form, known as the Fair Chance Notice, for use in such circumstances.
  • Finally, following an applicant’s receipt of these disclosures, the employer must afford the applicant at least three business days to respond. During this period, the employer must hold the position open for the applicant.

Failure to adhere to these stringent protocols may be deemed a violation of the Fair Chance Act.
Continue Reading Reminder for NYC Employers: Ban on Criminal Background Checks Takes Effect Today

As previously reported, New Jersey’s version of the “ban the box” law, entitled “Opportunity to Compete Act” (the Act), goes into effect March 1, 2015. The Act limits covered employers’ ability to inquire into a job applicant’s criminal record.

In less than a week, public and private employers that have 15 or more employees hired

Responding in part to a 2007 study which found that New York employees were largely unfamiliar with State laws regulating an employer’s use of past convictions for employment-related decisions and in support of the State’s goal to prevent discrimination on the basis of criminal records, the New York Legislature recently amended the State’s general business and labor laws to require employers to disseminate and post notice to job applicants and employees of their rights with respect to, and an employer’s limitations on the use of, information on criminal convictions. The posting and notice requirements take effect on February 1, 2009.


Section 296 of the New York Executive Law makes it unlawful for an employer to deny employment to an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of “good moral character” due to his or her prior conviction of a criminal offense, when such a denial is a violation of New York’s Correction Law Article 23-A (Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses). N.Y. Executive Law § 296.

Under Article 23-A, employers of 10 or more employees are expressly proscribed from making adverse hiring or termination decisions based upon an individual’s conviction record unless: (1) there is a direct relationship between the prior criminal offense(s) and the specific employment position sought or held by the individual; or (2) hiring or continuing to employ the individual would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. Before determining that an individual’s criminal conviction record bars employment or continued employment, Article 23-A requires that those employers carefully consider each of the following factors:

  • New York’s public policy encouraging the employment of previous convicts;
  • The specific duties and responsibilities of the employment position sought or held by the individual;
  • The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual’s fitness or ability to perform one or more job duties or responsibilities;
  • The time that has elapsed since the occurrence of the criminal offense(s);
  • The age of the applicant or employee at the time of the conviction;
  • The seriousness of the offense(s);
  • Any information produced by the person or on his or her behalf, regarding rehabilitation and good conduct; and
  • The employer’s legitimate interest in protecting its property as well as the safety and welfare of its employees and clients as well as the general public.

Notably, an employer must also give consideration to any certificate of relief from disabilities or certificate of good conduct issued to an individual, which certificate, by law, creates a rebuttable presumption of rehabilitation regarding the offenses to which it relates.

N.Y. Correction Law § 750, et seq.Continue Reading New Legislation Modifying New York Law Governing Use of Criminal Background Checks in Employment Taking Effect; Posting Date February 1, 2009