Westchester County, New York approved the “Fair Chance to Work Act” (hereafter, the “Act”), amending Chapter 700 of the Laws of Westchester County related to prohibiting discrimination based on an individual’s arrest record or criminal conviction. Under the Act, employers are, among other requirements, prohibited from making a preliminary or initial inquiry into a criminal conviction or arrest record in an application for employment.
Key Takeaways:
- Affects any employer with four or more employees.
- Prohibits employers from making a preliminary or initial inquiry or statement related to a criminal conviction or arrest record in an application for employment.
- Employer shall perform an analysis of the applicant’s criminal record and other factors as required under Article 23-A of the New York Correction Law.
- The employer must provide a written statement setting forth the reasons for taking adverse action upon request.
Which employers are affected?
The law affects any employer with four or more employees.
What is prohibited in the law?
Employers may not:
- Make a preliminary or initial inquiry or statement (in writing or otherwise) related to a criminal conviction or arrest record of any person until after submission of an employment application.
- Require an applicant to respond to any preliminary or initial inquiry or statement. Any refusal to respond to such inquiry or statement shall not disqualify an applicant from prospective employment.
- Declare, print or circulate or cause to be declared, printed or circulated any solicitation advertisement or publication which expresses, directly or indirectly any limitation or specification in employment based on a person’s arrest record or criminal conviction.
Can employers still consider and take adverse action based on an applicant’s criminal history?
Yes. After submission of an application for employment an employer may inquire about the applicants’ arrest or conviction record in accordance with New York State Executive Law 296(16). However, before taking any adverse action based on such inquiry, the employer shall perform an analysis of the applicant’s criminal record and other factors under Article 23-A of the New York State Correction Law.
Additionally, the analysis performed in accordance to Article 23-A of the New York State Correction Law may be requested by the applicant, and if requested, the employer must provide a written statement to the applicant setting forth the reasons for such denial.
Are there any exceptions?
Yes, including, but not limited to the below, the Act does not apply to:
- Employers who take actions pursuant to any state, federal or County law that requires criminal background checks for employment purposes or bars employment based on criminal history.
- Any actions taken by an employer with regard to an applicant for employment as a police officer or peace officer.
Recommendations
We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.
Contact Accurate Background
For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page.
*Please note: Accurate prepared these materials for informational purposes only. These materials are not intended to be comprehensive, and are not a substitute for, and should not be construed as, legal advice. Accurate does not warrant any statements in these materials. Employers should direct questions involving their organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply, to their own legal counsel.