I’m guessing this is the new face of equality. Or at least a redefinition of sanity. In any case, welcome to the Big Apple, employers! (From the NY Daily News)

In front of emotional supporters, Mayor de Blasio signed legislation Monday that will prohibit employers from inquiring about a candidate’s criminal record prior to a job offer. “Today I see hope for people like me,” said Marilyn Scales, 52, of the Bronx, who said she never has had a full-time job because of her record for dealing heroin.

As crazy as this may sound, there’s actually a bit more to this law than meets the eye from the brief Daily News account. That’s not to say that there’s some revelation coming here which makes this a good idea, but it’s a bit more nuanced. To begin with, it was already illegal to deny someone employment based solely on their having a record of criminal convictions unless that record poses a clear threat to persons or property. (Ostensibly, you didn’t have to hire somebody as your accountant who had already been convicted of embezzlement multiple times.) Also, employers couldn’t legally ask about arrests if those arrests were not part of a currently open case or had not led to a conviction.

But as with many regulations regarding the hiring process, that wasn’t too hard for employers to get around since there are so many factors which go into hiring decisions. This new law, however, adds a wrinkle to the process which will be problematic for employers. As the New York Association for Community Living explains, employment application questions will now fall into a complicated, multi-step process which could lead to all sorts of new legal entanglements. (They are speaking specifically to the concerns of non-profits, but this applies to pretty much everyone.)

The law takes effect 120 days from Mayor Bill de Blasio’s signature of approval, which by all accounts the Mayor is expected to provide very soon. Beginning on that date, covered employers must follow a three-step procedure for inquiries about an applicant’s criminal history: 1. First, the employer must issue a written copy of the inquiry in a manner to be determined by the New York City Commission on Human Rights (the “Commission”). Although the law is silent about whether the Commission will issue a mandatory inquiry form or simply prescribe requirements for such inquiries, employers will at least need to tailor their criminal history inquiries accordingly. 2. Second, before a conditional offer of employment is revoked, employers must provide the applicant a written copy of its analysis of the criminal history, including the reason(s) it revoked the conditional job offer and the supporting documents that formed the basis of the employer’s decision, e.g., the criminal history results. 3. Finally, the employer must allow the applicant a reasonable amount of time—no less than three business days—to respond to the revocation of the job offer, during which time the employer must hold the position open for the applicant.

In other words, if you were previously disinclined to hire somebody who spent a large part of their previous summers at the crowbar motel for slinging heroin, you could probably just fail to schedule them for an interview. But under this system, you don’t get to find out about the record unless they make it through the interview process and you tender an initial, conditional offer of employment to them. Only then can you dig into their criminal history. And if it turns out that they have the sort of record which would lead you to not want them as an employee, you have to send them a letter explaining why you were pulling the offer. That opens up you, as the employer, to charges under the aforementioned law against refusing to hire based on criminal background and…

Law Suits! (DING DING DING DING)

The sad part is, even if somebody challenges it, this law will probably hold up in court. Between the taxes, the fees and the massive regulatory burden it’s already hard enough to do business in New York. I wonder how many more employers will simply flee to a more business friendly climate after this?