Effective October 27, under the New York City Fair Chance Act, employers can inquire about a potential employee’s criminal record only after a conditional offer of employment is made.  The Act further requires that employers provide a written copy of the inquiry, the employer’s analysis, and any supporting documentation to applicants once such a report is returned.  The Act makes it a violation of the city’s Human Rights Law for private employers to ask about a job applicant’s criminal background before giving the applicant a conditional offer of employment.  

It should be noted, however, that employers that are required by federal, state or local law to conduct background checks and exclude people with specific convictions may still do so under the Act.  It also makes limited exceptions for certain positions such as those in law enforcement. 

More than 100 cities and counties and 17 states have adopted similar rules, but only Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island, the District of Columbia, and cities such as San Francisco and Chicago, have passed laws that govern how non-public employers address the issue of an applicant’s criminal background.  

The New York City legislation adds to a growing patchwork of regulations surrounding employment background screenings that include a criminal history check.  

Troutman Sanders has extensive experience in counseling companies on background screening compliance, including in “ban the box” jurisdictions.