NYC – Criminal Record Policy

Beginning on October 27, 2015, New York City employers with at least 4 employees are prohibited from making an inquiry or searching publicly available sources about an applicant’s arrest or criminal conviction record until after a conditional offer of employment has been extended.

After a conditional offer of employment is made, employers may make inquiries into an applicant’s criminal history and decide to not hire the individual only if the employer complies with the following procedure:

1.     Provide the applicant with a “written copy of the inquiry” which complies with the City’s Commission on Human Rights’ required (but not-yet-issued) format;
2.     Perform the analysis required by Article 23(a) of the New York Correction Law, “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses” (see below);
3.     Provide the applicant with a copy of its analysis, also in a manner which complies with the Commission’s required format, which includes supporting documents and an explanation of the employer’s decision to take an adverse employment action; and
4.     Allow the applicant at least three business days to respond to the written analysis by holding the position open during this time.

The Article 23(a) factors are:

• The public policy of New York state to encourage the employment of persons previously convicted of one or more criminal offenses;
• The specific duties and responsibilities necessarily related to the employment sought or held by the person;
• The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on his/her fitness or ability to perform one or more such duties or responsibilities;
• The time which has elapsed since the occurrence of the criminal offense(s);
• The age of the person at the time of the criminal offense(s);
• The seriousness of the offense(s);
• Any information produced by the person, or produced on his/her behalf, in regard to his/her rehabilitation and good conduct; and
• The legitimate interest of the Company in protecting property, and the safety and welfare of specific individuals or the general public.