Amendments to New York City’s Fair Chance Act (FCA), AKA “Ban the Box,” go into effect on July 29, 2021. The phrase “ban the box” comes from the removal of the “Do you have a criminal record?” question that requires jobseekers to respond either “Yes” or “No”. The Fair Chance Act is based on the idea that everyone deserves a fair chance at employment and applicants should be considered primarily on their skills and abilities.
What is the “Ban the Box” Law?
The Ban the Box movement started to protect individuals with criminal records from being automatically or immediately disqualified for a job. Under Ban the Box, prospective employers can not use a criminal record as the only reason not to extend a job offer. However, they may be able to do so if the nature of the position creates an exception.
What “Ban the Box” is NOT
Ban the Box is not the elimination of criminal background checks. They are still allowed and highly advisable, and even essential for many roles that deal with finances, children, or the elderly. What this law does is stall the probe into ones’ criminal history until after the applicant has been allowed the opportunity to demonstrate their value.
Withdrawing an Employment Offer
The Fair Chance Act does include provisions allowing employers to withdraw employment offers based on one of three factors which are:
- The results of a criminal background check after the FCA process has been followed.
- The results of a medical exam permitted by the Americans with Disabilities Act (ADA), or
- Other information that the employer could not have reasonably known before making the conditional offer. If the employer can show (as an affirmative defense) that, based on the information, it would not have made the offer regardless of the criminal background check results.
What Employers Need To Do
Employers need to ensure that anyone involved in the hiring process knows which questions can be asked during interviews. This would likely include managers, supervisors, and of course, HR personnel. Failure to do so could subject employers to penalties under the NYCHRL, which may leave you open to possible lawsuits where compensatory and punitive damages and attorneys’ fees can be awarded.
Background Checks & HR Policy Updates
It’s always best to update your HR policy to reflect any new laws or changes to them. This would include updating training booklets and/or company work manuals. Now, if you’re a small business and don’t have dedicated HR personnel to carry this out, Fingercheck offers convenient options. Our HR concierge platform gives you all the benefits of having your own in-house HR manager. You can generate customized employee handbooks, work manuals, legal paperwork, contracts, and much more with it. Additionally, through our partnership with leading background check provider, SappHire, Fingercheck users can easily request background checks from our platform. To learn how you can get started, click here or call Fingercheck at 1.800.610.9501.