New York City's Fair Chance Act
Most New York City employers are subject to the city's Fair Chance Act. A summary of the Act's requirements is provided below.
Protections for Job Applicants
Job Postings & Applications
Employers are prohibited from expressing any limitation or specification based on criminal history in their job advertisements. Examples of prohibited statements include, "no felonies" or "background check required. Additionally, employers may not make neutral statements about criminal history before a conditional offer of employment is made, such as "applicants' criminal history will be considered consistent with the requirements of the New York City Far Chance Act.
Job Interviews
Employers may not ask anything about, or even mention, applicants' criminal history or background checks in their interviews. If an applicant voluntarily discloses criminal history information to the employer during the interview, the employer should move the conversation to a different topic. Employers must not use an inadvertent revelation of applicant's criminal history as an opportunity to explore the criminal history information further. Employers who make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the NYCHRL.
Initial Assessments & Conditional Offer of Employment
Employers who request background checks must have a bifurcated screening process where they first receive the non-criminal information for an applicant, evaluate it, and then receive and evaluate the criminal information. Unless an exemption applies, criminal history may not be sought or considered by employers before a conditional offer of employment. The employer’s focus during this period must instead be on an applicant’s qualifications, such as academic credentials, working history, professional licensure, etc.
Common pitfalls employers may face during the initial screening stage include:
- Inadvertent revelation of an applicant's criminal history:
- Employers whose background check vendors can only produce one report with both criminal and non-criminal information: These employers must establish a system to internally segregate criminal history information to ensure that it is available to decision makers only after a conditional offer has been made.
- Motor vehicle reports: Because it is often impracticable to separate criminal and non-criminal information contained in a driver abstract, employers must not review driving abstracts until after a conditional offer has been extended.
Consent Forms: Employers should omit mention of a criminal background check when seeking an applicant’s authorization for an employment related background check prior to a conditional offer. Instead, employers are encouraged to use terms such as "consumer report" or "investigative consumer report" rather than "background check" in an authorization form used in the initial stage. Employers with consent forms that currently reference criminal history information should make immediate updates to their consent forms to remove this information.
After the conditional offer has been made, the employer may then ask about criminal history and/or conduct a background check on the individual.
Criminal Background Check Restrictions
Employers are prohibited from requesting certain information during a background check, including:
- non-conviction information (e.g., acquittals, dismissed cases, and expunged cases);
- cases adjourned in contemplation of dismissal;
- youthful offender cases;
- violations (offenses where sentencing is limited to 15 days imprisonment) and other non-criminal offenses; or
- sealed cases.
Employers are generally permitted to consider:
- open or pending cases;
- misdemeanor or felony convictions; and
- driving infractions.
Protections for Applicants & Current Employees
The Relevant Fair Chance Factors
Before employers take adverse action based on an applicant’s or employee’s criminal history, they must make one of the following determinations:
- There is a direct relationship between the criminal conviction and the job (includes prospective and current positions); or
- The granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
Either of these determinations must be reached by considering the “Relevant Fair Chance Factors,” which include:
- The policy of the city to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
- The specific duties and responsibilities necessarily related to the employment held by the person;
- The bearing, if any, of the criminal offense or offenses for which the individual was convicted (or alleged in a pending case), on the individual’s fitness or ability to perform one or more such duties or responsibilities;
- The age of the individual (whether the individual was 25 or younger for current employees) at the time of occurrence of the criminal offense for which the NY was convicted (or alleged in a pending case);[1]
- The seriousness of such offense or offenses;
- The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public; and
- Any additional information produced by the individual or on the individual’s behalf regarding his/her rehabilitation or good conduct, including any history of positive performance and behavior on the job or in the community, or any other evidence of good conduct.[2]
The Adverse Action Process
Employers that wish to take adverse action against applicants or employees after making the required determinations described above must take the following steps:
- Disclose to the individual a written copy of the employer’s inquiry and analysis of the relevant criminal history information;
- Request from the individual information relating to the Relevant Fair Chance Factors; and
- Give the individual a reasonable time to respond (at least five days for applicants, while holding the position open);
The NYC Human Rights Commission has prepared a standard form to use when following this required process, which you can find by clicking here.
Note: Placing a current employee on unpaid leave for a reasonable amount time while the employer takes these required steps does not constitute “adverse action” under this law.
Intentional Misrepresentations
The FCA includes a provision that allows employers to take adverse action based on an individual’s intentional misrepresentations about their criminal histories. Employers who wish to do so must still present written documentation regarding how and why the decision was made and give the applicant/employee time to respond to the determination. Note that “intentional representations” do not include information that applicants or employees are not required to disclose under relevant state laws, such as sealed and expunged records.
Notes:
[1] Employers must consider the date of the offense – not the date of conviction.
[2] Previous guidance from the NYC Commission on Human Rights states that a certificate of relief from disabilities or good conduct should create a presumption of rehabilitation regarding the relevant conviction.
Additional Resources:
https://www1.nyc.gov/site/cchr/media/fair-chance-act-campaign.page
Fair Chance Act Fact Sheet for Employers
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