Earlier in 2021, New York City’s Fair Chance Act (“FCA”) was amended by the New York City Commission on Human Rights. The FCA prevents employers from looking at an applicant’s criminal history until after a conditional offer of employment is extended. The amendments, which came into effect on July 29, expanded the FCA protections for applicants and now offer protections for already hired employees. This article will discuss how employers will be affected by this expansion for applicants and employees.
Additional Protections Under the FCA
The FCA expansion includes the following amendments:
Bifurcated Screening: Employers are only permitted to request an applicant’s criminal history after evaluating all relevant non-criminal information. Employers that use consumer reporting agencies should have bifurcated criminal background reports so that the non-criminal aspects of the report can be viewed before the criminal aspects. If driving records cannot be separated from criminal information, it must be treated the same and only viewed after non-criminal information.
Reporting Agencies: Consumer reporting agencies are prohibited from advising employers on whether or not they should hire an applicant based on their conviction history.
Temp Agencies: Temporary placement agencies are also required to comply with the FCA.
Independent Contractors: In addition to employees, independent contractors are now covered under the FCA.
Modified Fair Chance Factors: Employers are prohibited from discriminating against current employees who receive a conviction while they are employed or against potential applicants and current employees that have pending arrests.
- For convictions and pending arrests during employment, employers must take into consideration the newly defined Fair Chance Factors. These factors include:
– New York City’s goal to provide more opportunities for people with criminal history in employment;
– The duties that will be performed in the position;
– How the criminal offense that the applicant or employee was convicted or accused of effect their ability to perform the required duties;
– If the person was 25 years old or younger at the time of the criminal offense or accusation;
– The seriousness of the offense;
– The employer’s legitimate interest in protecting property, and the safety and welfare of others; and
– Any additional information provided by the applicant that demonstrates rehabilitation or good conduct.
Responding to Notice: Previously, the FCA required the employer to give an applicant three business days to respond to an FCA Notice. Employers must now provide both applicants and employees with at least five business days to respond to an FCA Notice. However, an employer may now place an employee on unpaid leave while the employer goes through Fair Chance Process. If the employee has accrued paid leave, the employer must allow the employee to use that leave instead.
Non-Conviction Protections: Employers are prohibited from considering an applicant’s violations, non-criminal offenses, non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or sealed offenses during the hiring process.
Information Solicitation: Previously, employers were required to solicit relevant information from applicants for evidence of rehabilitation or good conduct as part of the fair chance process. Now, employers are required to solicit any relevant information in relation to any applicable fair chance factors.
Revoking an Offer: The law codifies previous guidance from the NYC Commission on Human Rights, which stated that employers are only permitted to revoke a conditional offer based on:
1. A criminal background check after going through the Fair Chance Process.
2. Failure of a medical exam, as permitted under applicable law
3. Any other information the employer was reasonably unaware of prior to extending the offer, if the employer would not have made the offer in the first place had they known the information.
Misrepresentations: The amendments clarify that applicants or employees who make intentional misrepresentations during the hiring process, are not protected by the FCA.
The FCA amendments have expanded protections for applicants and now encompass current employees, temp agencies and independent contractors. Employers will need to evaluate their current policies and procedures in accordance with the FCA. To ensure compliance employers can discuss bifurcation with their consumer reporting agencies, review their current hirings and screenings processes, and adequately train staff that are involved in these processes.