New York City amended its Fair Chance Act in July 2021, and the changes took effect on July 29, 2021. These changes expanded the city’s ban-the-box law, which restricts the inquiries employers are allowed to make about criminal history during the hiring process and the time at which they can be made.
The updates to the Fair Chance Act add protections for applicants who have certain types of non-convictions, including unsealed non-criminal offenses and violations, and for current employees who are facing pending criminal charges.
Employers in NYC must understand the changes to the Fair Chance Act and update their background screening process accordingly so that they can avoid potential fines and legal liability.
What Changes Were Made?
Several important changes to the Fair Chance Act were made and are described below.
Bifurcated Screening Process
Employers that conduct pre-employment background checks are now required to wait to check their applicants’ criminal histories until they have completed other types of screening, including education verification, employment verification, pre-employment drug screens, and reference checks.
They must also wait to check the criminal backgrounds of their applicants until after they have extended conditional offers of employment.
The bifurcated process will be discussed in more detail later in this article.
Updates to the Fair Chance Process
When employers want to deny employment based on their applicants’ or current employees’ criminal records, they must first complete the Fair Chance Process before making a final decision not to hire the applicants or to fire current employees.
The required analysis includes considering several relevant factors based on the circumstances.
When an employer wants to revoke a conditional offer of employment to an applicant who has one or more convictions, the employer must assess it by considering the factors listed in Article 23-A[6], including the following:
- Whether a direct relationship exists between the type of conviction and the open job
- Whether hiring the applicant would pose an unreasonable risk to the safety of property, employees, customers, or the public
- Whether the conviction will impact the applicant’s ability to perform one or more functions of the job
- How long it has been since the conviction occurred
- The applicant’s age at the time of the conviction
- The severity of the offense
- Any evidence offered by the applicant of rehabilitation
- Whether the applicant has received a certificate of good conduct or relief from disabilities, creating a presumption that he or she has been rehabilitated
New York City employers that want to make adverse job decisions against current employees or applicants who have pending criminal cases or convictions must assess the situation using a Fair Chance Analysis.
The factors that must be considered are similar to the Article 23-A factors, but there are some differences.
New York City’s Fair Chance Factors include the following:
- The specific job duties and responsibilities of the job
- Whether the criminal conviction has any bearing on the ability and fitness of the individual to perform the functions of the position
- Whether the person was 25 years old or younger at the time of the offense, which should be considered to be a mitigating factor when true
- The severity of the offense
- The employer’s legitimate interest in protecting the safety of the public, its employees, customers, and other specific individuals
- Any additional evidence of the applicant’s good conduct and performance on the job or in the community
Employers do not have to consider the Fair Chance factors for applicants or employees who have intentionally misrepresented their criminal records, however.
Non-Convictions Completely Protected
Employers may not consider certain non-convictions for any employment-related decision. This includes unsealed non-criminal offenses and violations, adjudications in contemplation of dismissal, sealed offenses, and youthful offender adjudications.
Know Before You Hire
What Is the Bifurcated Screening Process?
The New York City Commission on Human Rights (NYCCHR) believes that employers should conduct bifurcated background checks and wait to conduct criminal records checks until after they have extended conditional offers of employment.
During the pre-offer phase, employers can conduct preliminary background screens about their applicants’ references, employment history, education history, and other similar types of non-criminal background checks.
Employers that work with third-party consumer reporting agencies to conduct pre-employment background checks must first disclose their intent to do so in writing, secure the applicant’s written authorization, and then analyze the reports they receive.
The NYCCHR recommends that background checks be divided into two stages. The first report is completed before an offer of employment is made and includes such things as the applicant’s non-criminal background information, including education verification, employment verification, reference checks, and others.
When employers decide not to proceed based on the first report, they must then follow the adverse action process under the Fair Credit Reporting Act.
The second report is not completed until after a conditional job offer has been extended. This report includes the criminal records information for the applicant.
It might not be possible to bifurcate employment background checks. In that case, employers might want to wait until after they make conditional offers of employment to conduct pre-employment background checks. If they do conduct them before making a conditional job offer, they cannot consider criminal history information until after extending the offer.
Rescinding an Offer or Making a Termination Decision
Employers can rescind a job offer or terminate an employee after completing the Fair Chance and adverse action processes. However, when applicants or current employees intentionally misrepresent their criminal records or pending cases, employers can take adverse action without going through the Fair Chance analysis.
However, they will need to give the applicant or current employee copies of the documents that demonstrate the intentional misrepresentation and give the candidate or employee five business days to respond before moving forward with the adverse action.
If the candidate or current employee can present credible evidence that the misrepresentation was not intentional or that the information the applicant or employee provided was not false, the employer must then complete the Fair Chance Process before making an adverse job decision.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.
