New York State Laws

• Asking about a prospective employee's salary history during all stages of the employment process unless an applicant voluntarily and without prompting divulges that history.
• Relying on salary history to determine what salary, benefits or other compensation to offer.

Exceptions will be made for positions in which federal, state or local laws authorize or require the employer to use a person's salary history when determining a level of compensation.

• Specify chargeable violations under the Human Rights Law.
• Define per se violations of the provisions that were added to the Human Rights Law.
• Clarify the type of questions and statements that employers may not ask in regards to an individual's criminal history.
• Explain that employers may not ask for information about arrests that did not lead to convictions or take any adverse action against employees or job applicants due to non-convictions.
• Define how liability is established if an employer inadvertently discovers that an applicant has a criminal conviction before a provisional job offer is extended. Liability only occurs if the employer uses that information to determine whether or not to extend a conditional job offer.
• Create a "discretionary mechanism for the Commission to resolve Commission-initiated charges of certain per se violations under the FCA by offering eligible respondents an option for expedited resolution."
• Provide details about how an employer must consider criminal convictions in regards to the individual's job duties and the safety of the workplace, current staff and public.
• Establish the circumstances under which an employer may revoke a conditional job offer. Employers must follow the Fair Chance Process, which includes:
  • Analyzing the conviction to determine whether or not it would hold any bearing on the individual's ability or fitness to perform the required job duties.
  • Considering relevant factors such as how much time has passed since the conviction and the age the person was at the time of their conviction.
  • Evaluating whether or not the applicant could present a legitimate threat to property, other employees and the public.
  • Providing a written copy of any inquiry the employer made to obtain criminal history information about the applicant.
  • Completing an Article 23-A analysis (if the employer feels an applicant may present an "unreasonable risk") and then providing a written copy to the applicant.
  • Informing the applicant that they shall have a reasonable amount of time to review this information and address any potential issues.
  • Reviewing and considering any information an applicant offers to dispute or explain the reason for their conviction.
• Call for employers to give applicants a reasonable amount of time to respond after completing the Fair Chance Process. Applicants are allowed no fewer than three business days (starting from the time an applicant receives the Fair Chance Notice and a copy of the inquiry) to respond, and employers are asked to consider the following when determining how much time to allot:
  • What information the applicant is collecting to present on their behalf and whether or not this information could modify the employer's decision based on the results of their Article 23-A analysis.
  • Why an applicant might need additional time to collect this information.
  • How urgently a position must be filled.
  • Any other relevant information.
• During this time, the employer may not permanently place another individual into the position to which the applicant was applying.
• Define the steps that must occur if an applicant disputes the results of their criminal background check:
  • The applicant must inform the employer and request time to gather proof of the error.
  • If the applicant is able to show that no conviction occurred, the employer may not withdraw the conditional job offer.
  • If the applicant is able to show that the conviction information is incorrect, the employer must then perform another Article 23-A analysis using the corrected information.
• Inform employers that if they wish to revoke a conditional offer (after the steps listed above are completed) they must inform the applicant in writing.

Exemptions exist for certain federal, state or local law enforcement positions.

In August, a lawsuit was filed against a New York employer (Barclays Events Center, LLC: DBA Barclays Center, Levy Restaurants, Inc., and Professional Sports Catering LLC). According to the suit, Barclays violated the FCA by using "flawed and discriminatory criminal history screening policies and practices" and not providing a Fair Chance Act Notice, which is now required in New York.

This lawsuit is a clear indicator that employers who do not update their screening policies to accommodate current laws could face legal actions.