New York City Unveils New Ban the Box Concept: Two-Step Background Checks

New York City recently adopted fair chance hiring policies that will impact the protocols that employers must follow while running employee background checks. The policies, which are amendments to the existing New York City Fair Chance Act or NYCFCA, provide extra employment protections for individuals who have criminal histories. The new policies went into effect on Thursday, July 29, 2021.

Under the amendments, employers in the city must adopt a new two-step process for conducting background checks to vet candidates for criminal history. The two-step nature of the new background check approach is due to the NYCFCA restricting the information that an employer can use as grounds for rescinding a job offer. NYC employers are still allowed to retract a conditional offer because of criminal background check results, medical examinations as permitted by the ADA, and “other information the employer could not have reasonably known before making the conditional offer.

The most significant implication of this new rule is not how it restricts employers in their ability to run criminal history screenings—rather, it is that employers can no longer rescind conditional job offers for information that they gleaned through noncriminal background checks. An example: If a school is running background checks for teachers and wishes to verify a candidate’s education, employment history, professional license, and references, the school must run those background checks before making a job offer.

It isn’t uncommon for ban the box ordinances such as the NYCFCA to bar employers from running criminal background checks until after making a conditional offer of employment. However, because most employers order all their background checks at one time for convenience, this requirement has caused many employers to delay all background checks until after making an initial employment offer. 

To comply with these amendments, NYC employers should get accustomed to running employee background checks in two phases. The first phase can include most noncriminal background checks, such as verification checks for education, employment, references, and professional licenses; civil history checks; and credit history checks. The second phase can include any background checks that might reveal a person’s criminal past, including criminal history checks and driving record checks, as these can sometimes show criminal offenses such as DUIs.

If employers are unable, for any reason, to run a two-phase background check, the NYCFCA requires them to establish internal systems to “segregate” criminal history information from noncriminal details. This system should ensure that decision-makers in a hiring process never see criminal background check details before a potential employer makes a conditional employment offer. Someone at the company can look at the background check reports, compile a report that separates out noncriminal information, and then deliver that information to the decision-maker.

At backgroundchecks.com, we break down our background check services a la carte–an approach that makes it easy for employers to divide their employee background checks into separate categories.