Attention NYC Employers! New Guidance Issued on Fair Chance Law

The New York City Fair Chance Act amendments go into effect on Thursday, July 29, 2021. This law expands protections available to job applicants, employees and independent contractors as well as licensing and credit applicants.

New York City Commission on Human Rights Legal Enforcement Guidance on Fair Chance Act and Employment Discrimination on the Basis of Criminal History has been updated to reflect the changes to the Fair Chance amendments.

Notably from the published guidance, employers should consider conducting a two-part screening process, searching criminal history post conditional offer of employment. (Refer to Section B. The Conditional Offer of Employment on page 13 in the link above.)

Additional considerations for screening job applicants, employees or independent contractors in the guidance include but are not limited to:

• Limit statements related to background checks (i.e. “background check required” “no felonies” “must have clean record”) on job postings, applications, advertisements or other types of recruiting materials
• Without an exemption, employers are prohibited from using or asking about non-conviction information as outlined in the guidance
• A conditional offer of employment is required before inquiring about (written or oral) any criminal history (including driving records) or considering criminal or driving records unless an exemption applies
• Employers can only use criminal convictions and pending cases that have a direct relationship between the criminal history and the job, or, must pose an unreasonable risk of harm to people or property
• Employers must analyze prior criminal convictions against factors outlined in Article 23-A of the New York Correction Law and/or pending criminal case information against NYC Fair Chance Factors before any conditional offer of employment can be withdrawn or any adverse action taken
• If an employer withdraws a conditional offer of employment based on establishing a direct relationship between the criminal record and the job, or unreasonable risk exists, the employer must provide the criminal record inquiries and its Fair Chance Analysis
• The Fair Chance Act Notice for Job Applicants has been updated to include information from the applicant relative to the Fair Chance Factors and the extension to five business days for the applicant to respond to the employer’s request from the day the applicant receives both the criminal inquiry and the Notice
• Early resolution is available to applicants and employees of employers Per Se violations outlined in the guidance
• Employers claiming exemptions to the Fair Chance Process must be able to demonstrate its exemption and inform applicants and employee as such

What Should New York City Employers Do?

• Carefully review the NYC Fair Chance amendments and any impact the changes may have on their screening programs
• Contact CSI’s Client Success Team at clientsuccess@creativeservices.com or (800) 227-0002 to discuss their screening components and process
• Review current authorization and disclosure forms unrelated to criminal searches, as applicable
• Review the Fair Chance Act Notice for Job Applicants
• Understand what exemptions may exist for certain entities in regulated industries
• Review internal policies and procedures to ensure compliance with NYC Fair Chance Act and the guidance issued including conditional offers and limitations on revocation
• Review internal processes and employment applications for any criminal history inquiries prior to conditional offer
• Review all recruiting materials for any statements related to “background check required” or requirements to pass a background check
• Understand the types of criminal information that can be actionable and when

More information about the amendments is available here.

Click here to read Seyfarth Shaw LLP’s overview of the NYC Fair Chance Act: Legal Enforcement Guidance for 2021 Amendments

Information provided should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.