The NYC Commission on Human Rights has released Guidance on their amended Fair Chance Act (FCA). The changes, which will go into effect on July 29, 2021, provide additional restrictions for employers hiring in New York City.
Key Takeaways
- Non-criminal history background checks, such as education and employment verification, must be completed and cleared before criminal history, including motor vehicle abstracts, may be requested, or considered.
- This may mean employers will need to request two separate background checks or have internal processes to segregate review of the non-criminal and criminal aspects of the consumer report.
- The amended FCA will apply to job applicants, employees, and independent contractors as well as employers must apply the FCA factors when considering an applicant’s or employee’s pending criminal charges or conviction history.
- The time required to allow an applicant or employee to respond to the Fair Chance Act Notice has increased from 3 to 5 business days.
- Employers may not reference or make any statement regarding an applicant’s criminal history prior to a conditional offer, so employers should review their disclosures and criminal history questions and related processes prior to a conditional offer.
- “Non-convictions” are protected and employers may not inquire into, or consider, such offenses.
- The Commission has released a revised Fair Chance Act Notice that employers may use for their assessment to comply with FCA.
Who is impacted by this Ordinance?
Employers as defined by N.Y.C. Administrative Code § 8-102.
Can an employer inquire into, or consider, criminal offenses?
According to the NYC Commission on Human Rights’ Guidance (“Guidance”), employers are prohibited from asking about or considering information about an applicant’s conviction history or pending cases until after the employer has assessed all other job qualifications and made a conditional offer of employment to the applicant. In addition, because driving abstracts may contain criminal and non-criminal information, employers must not review driving abstracts until after a conditional offer as well.
The consideration of an individual’s criminal history is to be the last step in the hiring or employment process. Employers can only request, and review, criminal history information after favorably evaluating the applicant’s non-criminal information, such as academic records, employment history, etc. From a process perspective, employers who request background checks on applicants should first receive and evaluate the non-criminal information, and if that is satisfactory, employers may receive and evaluate the criminal information post-offer.
Is it required for an employer to receive two separate background checks?
Employers may request two separate consumer reports (one report for non-criminal and one post-offer for criminal information). Employers may also receive one report with both criminal and non-criminal information, but the employer must establish a system to internally segregate criminal history information to ensure that it is available to decisionmakers only after a conditional offer has been made. Employers who take this route bear the burden of proving that the criminal information was inaccessible to decisionmakers until after a conditional offer.
Can an employer take adverse action against an applicant or employee due to their criminal history and/or pending criminal offenses?
Yes, however, only after they have conducted a Fair Chance analysis and determined:
- There is a direct relationship between the applicant’s conviction history or pending case and the prospective job; or
- That employing the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
The employer must properly establish a direct relationship between an applicant’s criminal record and the job, which means they must show a connection between the specific nature of the alleged conduct in a pending case or convicted conduct and the specific nature of the job.
In the event the employer wants to withdraw an offer, they must follow the Fair Chance Process, including, but not limited to:
- Disclosing to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history;
- Sharing with the applicant a written copy of its Fair Chance Analysis; and
- Allowing the applicant, a reasonable period of at least five (5) business days from receipt of the inquiry and analysis to respond to the employer’s concerns.
The Commission has released a revised Fair Chance Act Form that will capture the required information for applicants and employees regardless of if there is conviction history or a pending criminal case.
Can an employer disqualify an applicant or employee if they did not disclose criminal history and “falsified” their information?
An employer can still disqualify an individual for falsification but only if it involves an “intentional misrepresentation.” In addition, the employer must provide the information to the applicant as outlined in the Fair Chance Act.
Are there any exceptions?
There may be exceptions for certain regulated industries, so we recommend reviewing with your counsel.
Recommendations
We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.