employment background screening, NAPBS, ban the box, Fair Chance Act, New York

NAPBS and NYCCHR Clash Over Interpretation

“All meanings, we know, depend on the key of interpretation.”

-George Eliot

New York’s Fair Chance Act (FCA), a “ban the box” law that went into effect on October 27, 2015, prohibits employers from asking about a candidate’s criminal history until after a conditional job offer has been made. Further, the law bans:

  • Classified job ads that stipulate things like “no felonies” or “must pass background check”
  • Any questions about a candidate’s criminal history on the job application
  • Any questions about a candidate’s criminal history during a job interview

All employers with four or more employees must adhere to the law, and they are required to abide by it when hiring, firing, promoting, and demoting employees. It does not, however, apply to some jobs, such as law enforcement and any other job where another law says that a person with a criminal conviction cannot perform that job.

In August of 2017, an amended set of rules applying to the FCA, established by the New York City Commission on Human Rights (NYCCHR), went into effect. These rules established definitions and procedures related to the FCA and its administration. Further, the Commission set out an interpretation of the FCA that has caused no small amount of consternation with the National Association for Professional Background Screeners (NAPBS). The interpretation that the Commission has adopted requires a two-step, bifurcated screening process that separates the criminal components of a background check both in time (with the criminal portion to occur later in the pre-employment screening process) and in space (with the criminal portion of the report on a separate document).

The position of the NAPBS is that a plain reading of the law does not, in fact, require a two-step background check process, or that the language of the law in any way prepares or gives sufficient notice to employers that the Commission believes this to be required. The Association is concerned that the “impractical reality” of a two-step process would place a significant burden on employers and consumer reporting agencies (CRAs). They also fear that this interpretation would create undue harm and confusion for applicants.

Other organizations, including the Greater New York Hospital Association, The Business Council of New York, and the Partnership for New York City, have joined with the NAPBS in resisting this interpretation of the FCA, making it known that no one outside of the Commission is interpreting the FCA in this manner. Thus far, however, the Commission has not addressed or considered many of the objections and concerns the NAPBS has raised, including the potential that this interpretation and its subsequent requirements would unnecessarily complicate the requirements of the Fair Credit Reporting Act (FCRA), including applicant notifications and dispute processes.

Still, the NAPBS and other organizations remain in active discussions with the Commission, which has demonstrated a willingness to try to further understand the NAPBS’s position on the matter. NAPBS members are asked to reach out to any employer clients or businesses in the New York City area and request that they reach out to the respective industry associations to encourage them to get involved. Alternately, they can reach out to Brent Smoyer at brent.smoyer@napbs.com or 402.957.1179.

Meanwhile, a class action lawsuit filed in a New York federal court on August 4, 2017 could be the first of its kind to allege violations of the FCA. Plaintiff Felipe Kelly claims that, after applying for work at Barclays Center – home of the Brooklyn Nets of the National Basketball Association (NBA) and the New York Islanders of the National Hockey League (NHL) – in 2016, he was not hired after a background check with no explanation, no notices, and no opportunity to review the information presented against him.

Kelly’s attorneys are working to have the case certified as a class action to cover affected job applicants since October 27, 2015, when the FCA went into effect.

We at The Cedalius Group, the employment background screening provider you can trust, work to ensure that you have access to the most recent, up-to-date information available for all of your background screening, credentialing, and vetting requirements. Our goal is to provide our clients with all the tools they need to make informed, intelligent recruitment decisions while remaining in strict compliance with local, state, and federal law. Call us today at 404.963.9772 or visit us online at www.thecedaliusgroup.com for more information.

The Cedalius Group offers insight into the background screening industry for educational purposes. We always recommend you consult with your legal counsel to determine practices that best suit your business needs.