Update On New York City’s Fair Chance Act And Notice Requirements For Criminal Background Checks

11.18.2015

By: Brigette N. Eagan

On July 2, 2015, we wrote about New York City’s newest law, the Fair Chance Act (“FCA”), and its prohibition on employers from conducting criminal background checks before extending conditional offers of employment.  On November 5, 2015, the New York City Commission on Human Rights (“Commission”) issued Enforcement Guidance on the FCA.  This Guidance clarifies the process that employers must follow when inquiring into an applicant’s criminal history.

Under the Guidance, after extending a conditional offer of employment, the employer may inquire if the applicant has a criminal conviction or a pending criminal case; run a criminal background check (after making proper disclosures and notices); and ask about the events surrounding any conviction.  While the Guidance permits these types of inquiries, it expressly prohibits an employer from withdrawing an offer of employment based solely on the existence of a criminal conviction.  Rather, the FCA requires an employer to undertake an analysis of specific factors, called the Article 23-A factors, and then follow the Fair Chance Process.

Article 23-A Analysis.  The employer may withdraw an offer of employment based on criminal history under one of two theories.  First, the employer may show that a direct relationship exists between the criminal conviction and the job at issue, which precludes employment.  The second theory is that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”  To satisfy either theory, the employer must analyze the following Article 23-A factors:  1) NY public policy of encouraging employment of people with criminal histories; 2) the job duties at issue; 3) the relevancy of the conviction on the fitness for the new position; 4) the time elapsed since the events leading to the conviction; 5) the age of the applicant at the time of the underlying events; 6) information from the applicant in connection with good conduct/rehabilitation; 7) the employer’s legitimate interest in protecting property and the public; and 8) any certificate of good conduct.

If an employer seeks to rescind an offer of employment as a result of the Article 23-A analysis, it must then satisfy the Fair Chance Process.  This process entails providing the applicant with a written copy of any inquiry it made into the applicant’s criminal history, along with the date and time that it accessed the information and the results of that inquiry, and its written analysis (the Fair Chance Notice) of the Article 23-A factors.   For convenience, the Commission has prepared a Fair Chance Notice for employers, which can be accessed at:   http://www.nyc.gov/html/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdfcan.

After proving this information, the employer must give the applicant 3 business days to respond and provide additional information.  After receiving any additional information from the applicant, the employer must consider it.  If the employer’s analysis remains unchanged, the employer must notify the applicant of that decision.

Employer Take-aways.  We anticipate that the Commission will aggressively enforce this new law.  Employers are cautioned to review their hiring materials and processes for compliance.  Ensure that no pre-offer documents contain any reference to criminal background checks.  Further, Human Resources staff and all individuals involved in the interviewing process should be trained on the Guidance.

For more information regarding the FCA and best hiring practices, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practices Group at dmastellone@genovaburns.com or Brigette N. Eagan, Esq., Counsel, in the firm’s Human Resources Practices Group at beagan@genovaburns.com.

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