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The New York City’s Fair Chance Act (FCA) has several new amendments that will change the landscape of inquiring about the criminal histories of candidates and employees; these amendments take effect July 29, 2021.
The FCA prohibits private employers, in the city, with at least 4 employees from seeking information on applicants’ criminal history prior to making a conditional offer of employment. This means that any efforts made during the recruitment and hiring process – i.e. postings, advertisements, applications, and interview questions – must not include such inquiries into their criminal history before a conditional offer of employment has been made.
The employer must follow this process: 1) provide the applicant with a written copy of the criminal background check; 2) analyze the applicant’s criminal history using the 8 factors set forth in New York Correction Law Article 23-a and document said analysis; 3) provide the applicant with a written copy of said analysis; and 4) give the applicant at least 3 business days to respond to the written analysis, during which time the position must be held open. Once said conditional offer is made, the employer can inquire and can subsequently withdraw or reject the applicant if the employer finds either that 1) there is a direct relationship between the criminal offense and the specific job the employee is seeking, or 2) hiring the applicant would pose an unreasonable risk to property or the safety/welfare of individuals or the general public.
The 8 factors set forth in New York Correction Law Article 23-a include:
- New York’s public policy encouraging the hiring of individuals with prior criminal offenses;
- The job applicant’s specific duties and responsibilities necessarily related to the position;
- The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on the job applicant’s ability to perform the duties and responsibilities of the position;
- The time which has elapsed since the occurrence of the criminal offense(s);
- The age of the person at the time of the occurrence of the criminal offense(s);
- The seriousness of the offense(s);
- Any information produced by the job applicant (or on their behalf) with respect to their rehabilitation and good conduct; and
- The “legitimate interest” of the private employer in “protecting property and the safety and welfare of specific individuals or the general public.”
The only instance where this law does not apply is in situations where applicable law requires a criminal background check or limits employment on the basis of a criminal history.
On July 15th, 2021, the New York City Commission on Human Rights (NYCCHR) released guidance to help employers better understand the amendments. According to the NYCCHR, the amendments that will take effect starting today include:
- Covering current employees and independent contractors prior to an employer taking an adverse employment action
- Prohibiting employers from taking an adverse action based on an employee’s or applicant’s pending arrest or criminal charge without considering the relevant fair chance factors
- Prohibiting inquiries into an employee’s or applicant’s non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications and convictions sealed under certain sections of the criminal procedure law.
- Amending the relevant fair chance factors to be considered when rescinding a conditional offer of employment or taking an adverse action against a current employee recently convicted of a criminal offense.
Employers are not allowed to inquire about an applicant or employee’s prior criminal history, nor are they allowed to withdraw an applicant’s conditional offer or take adverse action against a current employee, if they fall into these specific situations:
- Cases adjourned in contemplation of dismissal
- Youthful offender cases
- Non-criminal offenses – the only exception is driving infractions
- Sealed cases
The amendments also expand the process that employers must go through prior to withdrawing a conditional offer or taking adverse action against a current employee. The process now looks like this, employers must: 1) provide the applicant with a written copy of the criminal background check; 2) request the applicant’s criminal history using the 8 factors set forth in New York Correction Law Article 23-a; 3) analyze the applicant’s criminal history using the 8 factors set forth in New York Correction Law Article 23-a; 4) analyze the applicant’s/employee’s criminal history using the factors set forth in the FCA; 5) provide the applicant with a written copy of said analysis by using the NYCCHR’s FCA Notice Form; 6) give the applicant at least 5 business days to respond to the written analysis, during which time the position must be held open.
*Note for Step 5: employers can use the NYCCHR’s FCA Notice Form or a similar document, as long as it describes the relevant factors and the employer’s detailed explanation of their analysis.
What should employers do now?
These amendments make complying with New York State and City Human Rights Laws more complex. Therefore, employers should consult with an employment attorney to make sure that their 1) pre-employment documentation and 2) steps taken prior to withdrawing a conditional offer of employment or taking adverse action against a current employee are in compliance with the FCA.
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