Effective July 29, 2021, amendments to the NYC Fair Chance Act (FCA) will expand employment protections for job applicants and employees with criminal histories. Most notably, the amendments expand the FCA’s protection to job applicants and employees with pending arrests and criminal accusations and to existing employees with arrests and criminal convictions during employment, as well as to independent contractors.
The FCA prohibits most employers in New York City from making inquiries into an applicant’s criminal conviction history until after extending a conditional offer of employment. If an employer runs a background check or otherwise inquires about an applicant’s criminal history after a conditional offer of employment is made, and wants to revoke the offer based on an individual’s criminal conviction history, the employer must analyze the factors enumerated in Article 23-A of the New York State Correction Law and complete the NYC Fair Chance Notice (the “Fair Chance Analysis”). The Article 23-A factors include the age of the person at the time of the occurrence, the seriousness of the offense, the specific duties and responsibilities related to the employment sought or held by the person and the time elapsed since the occurrence.
The employer must then provide the individual with the completed Fair Chance Notice and a copy of any background check conducted, give the applicant 3 business days to respond and consider any additional information the individual may provide. After doing so, the employer may then withdraw a conditional offer of employment only if the employer determines, based on the Fair Chance Analysis, that either (i) there is a direct relationship between the applicant’s criminal history and the prospective job, or (ii) employing the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. An employer cannot simply presume that a direct relationship or unreasonable risk exists because the applicant has a criminal record.
The foregoing steps are referred as the “Fair Chance Process.”
Starting July 29, 2021, if an employer wants to take adverse action based upon arrests or criminal accusations pending at the time of application for employment – as opposed to convictions – or due to arrests or convictions that occur during employment, a modified Fair Chance Analysis will be required. While the Article 23-A factors will still apply to decisions regarding applicants’ criminal convictions, the FCA amendments set forth a different list of factors for the Fair Chance Analysis to be conducted for applicant arrests and criminal accusations and for current employee arrests and convictions (the “NYC Fair Chance Factors”).
The new NYC Fair Chance Factors include, among others: (i) the specific duties and responsibilities necessarily related to the employment held by the person, (ii) the bearing, if any, of the criminal offense for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities, (iii) whether the person was 25 years of age or younger at the time of occurrence of the criminal offense, (iv) the seriousness of such offense, (v) the legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public, and (vi) whether the applicant or employee can provide evidence of subsequent rehabilitation or good conduct.
Before making a final decision, whether regarding a pending arrest, criminal accusation or conviction, the employer must still complete and provide a copy of the Fair Chance Notice and supporting documentation to the individual, but must now actively request information from the individual relating to the relevant Fair Chance factors. The individual will then have 5 business days, instead of 3, to respond. Employers may place an employee on unpaid leave for a reasonable period of time while conducting the Fair Chance Process, but must allow the employee to use accrued paid leave, if available, during that time.
Under the FCA amendments, it will be considered an unlawful discriminatory practice for an employer to take adverse action against an individual based on criminal history unless it has conducted the applicable Fair Chance Process and determined either that (i) there is a direct relationship between the pending arrest, criminal accusation or conviction and the job sought or held, or (ii) granting or continuing employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Employers may also take adverse actions against applicants or employees who make intentional misrepresentations regarding their arrest or conviction history. However, the employer must provide the individual with the basis of the determination that an intentional misrepresentation was made and give the person a reasonable amount of time to respond before denying or terminating employment. Additionally, the FCA amendments make clear that a failure to divulge information that a person may not be required to divulge, such as failing to disclose a criminal conviction before a conditional offer of employment has been made, is not a covered “misrepresentation.”
Finally, employers may only consider an applicant’s criminal history after favorably evaluating the candidate’s non-criminal information. As such, employers either need to have background check information presented in a manner that segregates criminal information from other background check results, or otherwise create an internal system to ensure that criminal history is reviewed only after all non-criminal information has been considered.
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