Amendments to New York City’s Fair Chance Act: What Employers Need To Know

These creates new obligations for employers with employees in New York City, and HR teams should review job applications and job postings.

The amendments to New York City’s Fair Chance Act (FCA), effective July 29, 2021, significantly expand the protections for job applicants and employees with criminal histories and introduce new requirements for employers in their hiring and background check processes. Employers in New York City must be mindful of these updates to avoid legal risks and ensure compliance.

Key Changes for Employers:

  1. Two-Step Background Screening Process:

The most notable change in the amended FCA is the introduction of a two-step process for conducting background checks. Employers are now required to separate the review of non-criminal and criminal background information into distinct phases.

  • Pre-conditional offer stage: Employers can only review non-criminal background information, such as education and employment verification, professional licenses, and reference checks, before making a conditional job offer.
  • Post-conditional offer stage: Only after extending a conditional job offer can employers inquire into an applicant’s criminal history. This step includes running a criminal background check and considering any criminal records uncovered, while following the FCA’s procedures to avoid discriminatory practices.

Employers must also ensure that non-criminal information is reviewed separately from criminal information. If the criminal background information is inadvertently accessed before the conditional offer, the employer must prove that it was not considered in the hiring decision, which places a significant burden on employers​.

  1. Fair Chance Factors and Process:

Once a criminal history is revealed post-offer, employers must perform a thorough Fair Chance Analysis using seven key factors before they can decide to rescind the conditional offer. These factors, derived from Article 23-A of the New York Correction Law and the new NYC-specific factors, include:

  1. New York’s policy to reduce barriers to employment for individuals with criminal histories.
  2. The specific duties of the job and the relevance of the criminal offense to those duties.
  3. The bearing of the criminal offense on the applicant’s ability to perform job functions.
  4. The time elapsed since the criminal offense occurred.
  5. The age of the individual at the time of the offense.
  6. The seriousness of the offense in question.
  7. Evidence of rehabilitation and good conduct, including certificates of relief from disabilities or good conduct​

Employers must document their analysis of these factors in writing, provide a copy to the applicant, and allow the individual at least five business days to respond before any adverse action is taken based on the criminal history​,

  1. Limitations on Considering Non-Conviction Records:

The FCA amendments impose restrictions on what types of criminal information can be considered in employment decisions. Employers may no longer consider non-convictions, including:

  • Arrests that did not result in a conviction,
  • Convictions that were sealed or reversed,
  • Cases adjudicated as youthful offender statuses,
  • Violations or petty offenses like disorderly conduct​

These non-convictions are not permissible grounds for making employment decisions, and employers must ensure their background check processes comply with these limitations.

Additional Considerations:

Employers must also be mindful of other compliance requirements, such as providing notice to applicants about the background check process, conducting the Fair Chance Analysis, and issuing a Fair Chance Notice when revoking a conditional offer due to criminal history. This process not only applies to hiring but also to promotions or transfers and actions against current employees based on new convictions​.

The amendments to the Fair Chance Act create a more robust framework aimed at minimizing employment discrimination based on criminal history, requiring employers to carefully review their hiring procedures and ensure compliance to avoid legal pitfalls.

 

 

Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.