The Amendments to New York City’s Fair Chance Act add new protections for job seekers as well as current employees who have criminal histories, including pending cases. The new provisions took effect on July 29, 2021.
On June 15, 2021, the New York City Commission on Human Rights released a legal enforcement guidance concerning the recently amended Fair Chance Act. The amendments provide new protections for those seeking employment and current workers with criminal records (including pending cases). The Guidance is the NYCCHR’s interpretation of the FCA and its amendments. New York City employers in the private and public sectors should understand the FCA’s new rules, which went into effect on July 29, 2021.
“Ban the Box” Law
“Job applicants deserve to be judged first and foremost on their qualifications.”
The City of New York amended its Fair Chance Act (“FCA”)—also called the “Ban the Box” law—which restricts the kinds of questions that employers can make about an individual’s criminal history during the hiring process and restricts when an employer can initially seek criminal background information. Note that there are a number of exceptions that apply where the Fair Chance Act doesn’t preclude criminal conviction inquiries. This includes employers prohibited by local, state, or federal law from hiring people with certain convictions and employers in the financial services industry. They are exempt from the Fair Chance Process as far as it conflicts with industry-specific rules and regulations created by a self-regulatory organization (“SRO”). But such an exemption applies just to those positions regulated by SROs.
The changes include new protections for job seekers whose histories include certain “non-convictions,” like unsealed violations and unsealed non-criminal offenses. The new protections also include pending arrests and other “criminal accusations.” Employers can’t consider “non-convictions,” which includes, but isn’t limited to:
(i) cases that resolved in a conviction for a non-criminal offense (as that term is defined by the law of another state); and
(ii) convictions for the following non-exhaustive list of violations: trespass, disorderly conduct, failing to respond to an appearance ticket, loitering, harassment in the second degree, disorderly behavior, and loitering for the purposes of engaging in a prostitution offense.
This also applies to current employees facing pending criminal charges.
The changes took effect on July 29, 2021.
There are a number of important changes of which New York small business owners should be aware:
Two-Step Background Check in Hiring
Employers that screen applicants’ backgrounds are now required to delay any investigation into the applicant’s criminal history until after other parts of the screening (e.g., reference checks, credit checks, drug screens, and confirmation of educational and employment history, known as “Other Background Information”) have occurred and may conduct investigations of criminal backgrounds only on those applicants to whom a conditional offer of employment has been made. The State’s Advisory calls this a two-part procedure the “Bifurcated Screening Process.” See more on this below.
A More Complex “Fair Chance Process”
If a person’s criminal record is the basis for a potential adverse employment action (either an applicant or a current employee) New York employers must use the “Fair Chance Process” before making a final determination. This is accomplished by performing the analysis in the NYCCHR’s new Fair Chance Notice. This new Fair Chance Notice has a number of distinct relevant factors to consider in various situations.
If an employer is considering revoking its conditional offer to a candidate with one or more pre-employment convictions, the employer must analyze the situation using a “Fair Chance Analysis,” which contemplates “Article 23-A Factors.” If an employer decides to withdraw a conditional offer of employment because of the applicant’s criminal background following an Article 23-A Analysis, the FCA mandates that the employer follow the “Fair Chance Process,” which includes sending the applicant a “Notice of Intent to Take Adverse Action,” and with this notice, also including:
o A completed “Fair Chance Notice,” summarizing the factors analyzed and the reasons for the decision;
o A copy of the criminal background report;
o Any other supporting documents that formed the basis for the intended adverse action;
o A copy of “Summary of Your Rights Under the Fair Credit Reporting Act”; and
o A copy of Article 23-A of the New York Correction Law.
Plus, the employer must hold the position open and allow the applicant at least three business days to respond.
If the applicant responds with relevant documents or information, the employer must consider whether those materials, under an Article 23-A Analysis, require reversal of its decision to rescind the job offer. If they don’t, or if the applicants fail to provide a satisfactory response in a timely manner, the employer must send the applicant a “Notice of Adverse Action,” along with additional copies of:
o The criminal background report,
o Any other supporting documents that formed the basis for the adverse action,
o The “summary of your rights under the fair credit reporting act”; and
o Article 23-A of the New York Correction Law.
If an employer is thinking about taking an adverse action against a candidate or current employee with a pending criminal case OR a current employee with a conviction, the employer must analyze the situation using a Fair Chance Analysis that contemplates “NYC Fair Chance Factors” (which are similar to the Article 23-A Factors).
The new law adds the following new factors to be considered in an assessment for pending arrests or criminal charges, or employee convictions that occur during employment. In these situations, employers will now have to consider the following factors, in lieu of the Article 23-A Analysis:
- The City’s policy “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 job at issue;
- “The bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities”;
- Whether the employee or applicant was 25 years of age or younger at the time the criminal offense(s) for which the person was convicted occurred, “or that are alleged in the case of pending arrests or criminal accusations”;
- “The seriousness” of such offense(s);
- The employer’s “legitimate interest” in “protecting property, and the safety and welfare of specific individuals or the general public”; and
- “any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.”
“Complete Protection” for Non-Convictions. There are certain criminal-related matters that can never be considered (at any time) during the hiring process. These matters include unsealed violations and unsealed non-criminal offenses and several other categories of criminal history. This includes but isn’t limited to:
- Youthful offender adjudications;
- Adjournments in contemplation of dismissal (unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution); and
- Sealed cases.
The Bifurcated Screening Process
The NYCCHR has found that, before making a conditional job offer, employers must complete their assessment of all aspects of a candidate’s qualifications, including any Other Background Information- except for a medical examination and any review of information about, or potentially related to, a candidate’s criminal record, including driving records.
The NYCCHR say that the need for bifurcation is based on the concern that employers often revoke job offers as soon as they get a background report that has any criminal information, stating that the revocation on factors other than the candidate’s criminal conviction history, without regard for the principles of the FCA.
The NYCCHR thinks that bifurcation will isolate criminal information from any other information that might inform an employer’s decision during pre-employment screening, and if an employer revokes an offer after a conditional offer, it will only be because of the candidate’s criminal history. As such, employers are now required to consider all Other Background Information before making a conditional offer, and to defer any criminal background checks until after such a conditional offer is made.
Here’s what Should New York City employers should do now: First, review the updated Guidance for changes to the FCA that took effect on July 29, 2021. Next, speak with an experienced New York business attorney and determine if criminal background checks are necessary for every position.
With your business attorney, review and update human resources policy manuals, forms, and wording used in any correspondence with prospective employees or candidates. This should include job postings, notices, and offer letters to ensure that they comply with FCA requirements. You may also need to develop a new communication for obtaining authorization to perform the first part of the Bifurcated Screening Process in order to obtain Other Background Information.
Look at training for all management and HR staff who are responsible for hiring, firing, and/or employee discipline so they understand the FCA’s principles and processes and the corresponding changes to your company’s internal procedures.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, startups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.