When can a New York City employer ask about my criminal record?

Who does this apply to?

Applicants and employees covered by the City law. Police and peace officers, law enforcement agencies, certain designated City jobs, and jobs where another law requires a criminal background check are largely excluded (Admin. Code § 8-107(11-a)(g)).

The rules

• No questions before the offer. No inquiry or statement about your arrest or conviction record, and no search of public records or consumer reports for it, until after a conditional offer (§ 8-107(11-a)(a)(3)). No ads saying people with records need not apply (§ 8-107(11-a)(a)(1)).
• After the offer. Before taking back the offer, the employer must give you a written copy of its inquiry, ask you for information about the “fair chance factors,” analyze them, give you that analysis in writing with the supporting documents and its reasons, and allow at least five business days to respond, holding the position open (§ 8-107(11-a)(b)).
• During employment. An employer may act on a pending arrest or a conviction during employment only after considering the fair chance factors and finding a direct relationship to the job or an unreasonable risk (§ 8-107(10)(b)–(c)), and only after a similar written process (§ 8-107(11-a)(c)).
• Some things may never be asked about, including non-pending arrests and sealed matters where State law forbids it, and violations and non-criminal offenses (§ 8-107(11)).
• You do not have to answer an unlawful question, and refusing cannot disqualify you (§ 8-107(11-a)(f)).

What should I gather?

• The offer, and when it was made.
• When you were first asked about your record, and how.
• Every written notice, analysis and document the employer gave you, and your response.