Articles Posted in Criminal History Discrimination

New York City law provides some of the most comprehensive protections against employment discrimination based on criminal history. No comparable protections exist under federal law, although the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., provides similar protections with regard to consumer credit information. Credit reports obtained by employers during the hiring process may include information regarding criminal history. A putative class action in federal court in New Jersey alleges that a major ridesharing company violated the FCRA by failing to disclose information found in drivers’ credit reports prior to taking adverse actions against the plaintiffs. Cuccinello, et al. v. Uber, Inc., et al., No. 2:15-cv-06604, am. Complaint (D.N.J., Dec. 7, 2015). The lawsuit also names the credit reporting agency (CRA) that issued the credit reports as a defendant.

The New York City Human Rights Law (NYCHRL) does not allow employers to inquire about criminal history until they have extended a conditional offer of employment to a specific applicant. If an employer makes an adverse decision after this point, it must notify the applicant of the reasons for this determination and give the applicant an opportunity to respond. This is similar to provisions of the FCRA relating to the use of credit reports for employment purposes.

The FCRA requires an employer to get a applicant’s written authorization to obtain a credit report, and to provide the applicant with “a clear and conspicuous disclosure,” in writing, stating that the information contained in the credit report may affect the employer’s hiring decisions. 15 U.S.C. § 1681b(b)(2)(A). Before a CRA may issue a report to an employer, the employer must certify that it has followed these requirements. Id. at § 1681b(b)(1)(A). If the employer bases an adverse action or decision on information contained in the applicant’s credit report, it must provide the applicant with a copy of the report and a notice of their rights under the FCRA. 15 U.S.C. §§ 1681b(b)(3)(A), 1681g(c).

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Discrimination in hiring on the basis of a criminal record, including not only convictions but also arrests and charges, is a serious problem for millions of people in this country. Many cities and states have enacted laws protecting workers with criminal convictions from many forms of discrimination. Recent amendments to the New York City Human Rights Law (NYCHRL) offer some of the strongest protections in the country. The law includes an exception, however, for situations when other local, state, or federal laws specifically disqualify people with criminal records from certain types of employment. New York State has more than 1,000 such laws.

The NYCHRL generally prohibits employment discrimination based on criminal conviction history, using procedures established by state law. N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq. Under the New York State Corrections Law, an employer cannot refuse to hire someone or take other adverse employment actions against them based solely on criminal history, except in two situations:  if a “direct connection” exists between the criminal history and the specific job in question, or if the employer reasonably believes that employing the person would pose an “an unreasonable risk” to certain people, the general public, or private property. N.Y. Corr. L. § 752.

An employer that denies someone a job on one or more of the grounds stated in the Corrections Law must provide written notice to that person. The NYCHRL also prohibits employers from advertising job openings as only being open to people without criminal records. N.Y.C. Admin. Code § 8-107(11-a).

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Criminal history can be a major stumbling block during a job search. Laws at the state and city levels around the country protect job seekers from employment discrimination based on criminal history during the initial stages of the application process. New York City goes even further in restricting the extent to which employers may use criminal history as a factor in hiring decisions. New research about employees with criminal records appears to affirm the validity of these laws and the principles behind them.

“Ban the Box” (BTB) laws prohibit employers from asking about criminal history early in the job application process. The “box” refers to the check box on a typical job application form asking whether an applicant has ever been arrested, been charged with an offense, pleaded guilty or no contest, or been convicted in a court of law. Employers also may not inquire about criminal history during an initial interview. The point in the application process when employers may ask about criminal history varies from one BTB law to another, but it never occurs during the first stage.

New York City’s Fair Chance Act goes further than most other BTB laws. It states that employers may not discriminate against an employee or job applicant because of that person “having been convicted of one or more criminal offenses,” or because a conviction history resulted in “a finding of a lack of ‘good moral character.’” N.Y.C. Admin. Code § 8-107(10)(a). An employer can take conviction history into account once it has made a conditional offer of employment, but if it makes an adverse finding based on that history, it must notify the applicant or employee and give them an opportunity to respond. Id. at §§ 8-107(10)(c), (11-a)(b); see also N.Y. Corr. L. § 750 et seq.

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Criminal background checks have become increasingly common in the hiring process in recent years. Many employers refuse to consider an applicant with a criminal history, even when it has little to no relation to the job in question. This creates a vast population of people who are essentially unemployable, which is bad not only for those people but for everyone. A growing body of law at the city, state, and federal levels places limits on how employers may use criminal history in hiring decisions. Still, there is much progress to be made. The U.S. Department of Housing and Urban Development (HUD), which deals with federal housing discrimination law, recently issued new guidelines regarding the use of arrest records by landlords. While these guidelines do not directly affect employment, they are an important step forward on the larger issue.

When discussing how criminal history plays a role in employment discrimination, it is important to understand the difference between an arrest, a charge, and a conviction. An arrest record does not, by itself, indicate that a person committed a crime, nor should it necessarily serve as evidence of criminal activity. Similarly, a charge without a conviction should not imply criminal activity. A conviction means that either a person pleaded guilty to a criminal charge or was convicted after a trial, at which the state had to prove guilt beyond a reasonable doubt. A person may still be able to prove actual innocence, even after a conviction. Employers and others often fail to make a meaningful distinction between an arrest, a charge, and a conviction, so the law attempts to make the difference clear.

Cities across the country, including New York, have enacted laws restricting employers’ ability to inquire about criminal history during the initial stages of the job application process. These laws are commonly known as “Ban the Box” (BTB) laws, in reference to the check box on a typical job application that asks whether an applicant has ever been arrested, charged with, or convicted of a crime. New York City’s Fair Chance Act, which took effect in October 2015, prohibits employers from asking about criminal history until they have extended a conditional offer of employment. At that point, they must notify an applicant if they make an adverse decision based on the applicant’s criminal history, and they must give the applicant an opportunity to respond.

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Criminal history is a major impediment to finding a job for many people in New York City and around the country. This is often true even when the nature of an individual job applicant’s criminal history has little to no relation to the job in question. Some state laws also specifically target people with criminal records, often in very broad terms. In late 2015, the Pennsylvania Supreme Court ruled that one such law, which excludes people with criminal convictions from a particular job market entirely, was unconstitutional. Peake, et al. v. Comm. of Pennsylvania, et al., No. 216 M.D. 2015, slip op. (Pa. Sup. Ct., Dec. 30, 2015).

Many local governments, including New York City, have adopted laws restricting employers’ ability to inquire about criminal history in the initial stages of the hiring process. See, e.g. N.Y.C. Admin. Code § 8-107(10). These laws are often known as “Ban the Box” (BTB) laws, in reference to the check box found on many employment applications asking whether an applicant has a criminal record. BTB laws are an important step in enabling people with criminal history to find employment, but the issue addressed in Peake is different. It involves the categorical exclusion of people with criminal histories from employment in a particular field.

Pennsylvania’s Older Adults Protective Services Act (OAPSA) is intended to protect “older adults,” defined as people age 60 or older, “who lack the capacity to protect themselves.” 35 Pa. Cons. Stat. §§ 10225.102, 10225.103. It prohibits nursing homes, and other facilities that provide care to older adults, from hiring any applicant who has been convicted of a wide variety of offenses, ranging from homicide to various fraud- and drug-related offenses. Id. at § 10225.503. The law gives no discretion to nursing home administrators and actually provides for administrative and criminal penalties for facility administrators who violate these provisions. Id. at § 10225.505.

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Cities and states around the country have enacted “Ban the Box” (BTB) laws, which prohibit employers from asking about criminal history during the initial stage of the job application process. New York City’s Fair Chance Act (FCA), which took effect in October 2015, amends the New York City Human Rights Law (NYCHRL) to protect job applicants who might have had a hard time finding a job because of a criminal record. Some critics have claimed that the law might come into conflict with an employer’s legal duty to protect its employees under statutes and the common law. Balancing the interests promoted by BTB laws with those represented by laws regarding, for example, sexual harassment may be a matter for New York courts to consider in the near future.

BTB laws prevent employers from excluding applicants with criminal records right away because they had to check a box on an application form that asked whether they had a criminal record. Under the FCA, employers cannot advertise that a job is only available to applicants without criminal records, and they cannot inquire about criminal history during the initial phase of the application process. An employer can ask about criminal history once they have extended a conditional offer to an applicant, but the FCA establishes strict procedural requirements.

Once an employer has made a conditional offer of employment, the FCA allows it to consider criminal history, but only to the extent permitted by Article 23-A of the New York Corrections Law. N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq. An employer may only take adverse action, such as revoking the conditional employment offer, if the individual’s criminal history is directly related to the job at issue, and employing the individual “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” N.Y. Corr. L. § 752.

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Criminal history can be a major impediment for job applicants. Laws in New York City and elsewhere offer some protection for job seekers whose criminal history is not directly relevant to a job or its specific duties. Incorrect information is also a serious concern, especially considering the sheer volume of information available to consumer reporting agencies (CRAs) and other services. A putative class action is alleging violations of the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., because of a hiring decision allegedly based on inaccurate criminal history in a background check. Feldstein v. Amazon.com LLC, et al., No. 3:15-cv-07322, complaint (D.N.J., Oct. 5, 2015).The New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., protects employees and job applicants from various forms of employment discrimination. This includes a ban on discrimination based on an arrest or criminal record, unless a “direct relationship” exists between an applicant’s criminal history and the specific job, or the applicant would pose an “unreasonable risk” to specific individuals, specific property, or the public. N.Y.C. Admin. Code §§ 8-107(10), (11); N.Y. Corr. L. § 752. Employers in New York City are also barred from advertising jobs as being open only to people without criminal history, or inquiring about criminal history during the initial phases of the hiring process. N.Y.C. Admin. Code §§ 8-107(11-a).

Job applicants in New York City also enjoy protection under the NYCHRL from certain adverse employment decisions based on credit history. The NYCRHL defines “consumer credit history” to include an applicant’s “consumer report,” “credit score,” and other financial information. N.Y.C. Admin. Code. § 8-102(29). It prohibits discrimination based on credit history information, except when such information affects federal securities law. Id. at § 8-107(24). The NYCHRL does not, however, address situations in which a report of criminal history is incorrect.

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Numerous states and cities around the country, including New York City, have enacted laws prohibiting employers from inquiring about a job applicant’s criminal history during the initial stages of the hiring process. Many employers have, in the past, stated outright that they would not consider job applicants with a criminal record, regardless of whether it was relevant to the job. With people all over the country struggling to find work, a criminal history is a nearly impossible barrier for many people. State laws in New York already prohibit some discrimination against job applicants with criminal records, but New York City’s new law, which took effect on October 27, 2015, prohibits employers from inquiring about a criminal record in job applications. This provides an additional layer of protection for applicants and helps them get a fair opportunity.

Categorically denying employment opportunities to people with criminal records not only puts those people in a precarious situation, but it also puts a burden on the rest of society to support an essentially unemployable population. One could further argue that it deprives employers of a complete applicant pool, since the mere fact of a criminal history often has nothing to do with an individual’s qualifications for a particular job. Some criminal history is relevant to a particular job—a bank has a legitimate reason not to want to hire someone with convictions for embezzlement or securities fraud—but a blanket ban on applicants with criminal records serves no such purpose.

This sort of practice also implicates other areas of employment law. According to the New York Times, approximately 10 percent of all American men in 2010 had a felony conviction, and the percentage was much higher—just over 25 percent—among black men. The Equal Employment Opportunity Commission (EEOC) has long considered employment discrimination based on criminal convictions to be a short distance from discrimination that falls under Title VII of the Civil Rights Act of 1964, particularly race discrimination. It issued its most recent enforcement guidance on this issue in 2012.

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