Restaurant Law Blog

Wednesday, July 8, 2015

NYC Council Passes Legislation Preventing Potential Employers From Inquiring Into Candidates’ Criminal Background

As a restaurant owner, what are the limits regarding requesting applicants’ personal information? 

As a restaurant business owner, employee turnaround can be one of the most frustrating aspects of running the enterprise. Moreover, the ever-changing legislation pertaining to the restaurant and alcohol service industries can be overwhelming for even the most experienced owner or manager. Fortunately, a restaurant law attorney can help you overcome the legal quagmire of the food service industry, including the finer nuances of employment and anti-discrimination laws.

In June, 2015, the New York City Council followed the lead of nearly 100 other jurisdictions by banning the inclusion of criminal history consideration in the employment process. Under the Fair Chance Act, employers with four or more employees must make a conditional offer of employment before requesting criminal background information – otherwise they could face serious fines and penalties. Practically speaking, this means restaurant hiring managers will be prohibited from asking candidates to reveal their criminal backgrounds on pre-hire paperwork and applications – however, running a criminal background check after a preliminary job offer is still considered acceptable

Exceptions to the Fair Chance Act

There are several notable exceptions to the Fair Chance Act, some of which may apply directly to the restaurant industry. For instance, the law does not prohibit inquiring about criminal background information if doing so is required under other local, state, or federal laws. For example, New York’s liquor licensing laws prohibit a convicted felon from working with a licensed manufacturer or wholesaler. Moreover, convicted felons may not work at any retail establishment selling alcohol other than a hotel, restaurant, club or recreational facility with an on-premises license. In this scenario, it is likely that the Fair Chance Act would permit an employer from inquiring as to a potential candidate’s criminal background.

Adverse action following criminal background inquiry

If an employer discovers the existence of a criminal background and decides to revoke the conditional offer of employment, it must take the following procedural steps:

  • Provide the applicant with a written copy of the criminal history report;
  • Perform a thoughtful analysis of whether the individual’s criminal history will impact his or her expected duties or obligations in the position;
  • Provide a written copy of said analysis to the candidate;
  • and Provide the candidate three business days to respond.

If you are running a restaurant and would like to discuss your duties and obligations under the Fair Chance Act, please do not hesitate to contact the New York restaurant lawyers at Dipasquale Law Group today: (646)383-4607.

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