Even though New York’s Correction Law Article 23-A has been on the books since 1976, many employers are still unaware of how the law affects their ability to make employment decisions based on applicants’ criminal histories.1 On the other hand, California’s Fair Chance Act only recently took effect in January of 2018, which means employers may not have learned of the law yet, much less gotten a full understanding of its requirements.2 These state Fair Chance laws are designed to give applicants with criminal records that do not necessarily affect their ability to perform specific jobs the reasonable chance to gain employment.
California law attempts to accomplish this by requiring employers to wait until a conditional offer of employment has been made before asking about an individual’s criminal history. Employers in New York and California are generally prohibited from having blanket, zero-tolerance policies that disqualify all applicants with criminal histories from employment. Instead, they must make individualized assessments for all applicants with criminal histories by considering the following factors:
- The bearing, if any, the criminal offense will have on the applicant’s ability to perform the duties and responsibilities of the job;
- The time that has passed since the criminal offense;
- The seriousness of the criminal offense; and
- Any information the applicant provides regarding subsequent rehabilitation or good conduct. 3
Additionally, both states require employers to provide applicants who are denied employment because of their criminal histories with written notice that states the reasons for which they were denied.4 California employers must include a specific identification of which crime(s) caused disqualification with the written notification. Of course, there are also exceptions to these laws, such as when federal or state law requires disqualification of applicants with certain criminal convictions, or when an applicant’s criminal history presents an unreasonable risk to the property or safety of others.5
Regardless of which state employers operate in, they must understand that employment decisions cannot be made in a vacuum. Instead, they must consider all relevant legal issues when determining whether to disqualify applicants because of their criminal histories, such as state laws, federal consumer protection laws (such as the Fair Credit Reporting Act), and Equal Employment Opportunity laws.6 Employers should keep in mind that this article only provides a brief overview of New York’s and California’s Fair Chance employment laws, and that the best way to stay informed, up-to-date, and compliant with these constantly evolving employment laws is to consult with legal counsel.
1N.Y. Correct. Law, Article 23-A.
2Cal. Gov’t Code § 12952; 2 CCR 11017.1.
3New York also requires employers to consider the age of the applicant at the time the crime was committed.
4New York’s law requires employers to provide this notice to all applicants with criminal conviction records who are denied employment, regardless of the reason for denial.
5Keep in mind that this is only a brief overview of these laws, and that the best way to address compliance is to consult with your legal counsel.
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