Fair Warning for NYC’s Fair Chance Act
Last year, New York City amended its Fair Chance Act (FCA), which is intended to make it “illegal for most employers in New York City to ask about the criminal record of job applicants before making a job offer.” In mid-July, the NYC Commission on Human Rights released guidance and an updated FAQ to reflect the amendments which went into effect on July 29th.
Notable changes to the FCA include:
- Prohibition on non-convictions
Employers are now prohibited from inquiring into or taking adverse action due to non-convictions. This includes violations, non-criminal offenses, non-pending arrests, adjournments in contemplation of dismissal, youthful offender adjudications, and sealed offenses.
- Employees join the party
The FCA, which previously applied only to applicants, now applies to current employees as well. (Don’t forget, independent contractors and freelancers are now considered employees under the New York City Human Rights Law)
- Always check twice
Employers who wish to use criminal background checks must now conduct two separate background checks (one for non-criminal and one for criminal). The non-criminal check must be completed before a conditional offer is made. Only after the non-criminal check is completed and a conditional offer is made, may employers then refer to a criminal background check.
If an employer’s consumer reporting agency is unable to make two separate background checks, the employer must create an internal process that prevents the hiring parties from seeing the criminal background check before a conditional offer is made.
- Forget that we even called them background checks
Because the term “background check” may discourage applicants with criminal history from applying for a position, the FCA prohibits employers from stating that background checks are required prior to a conditional offer being made. But, as just discussed, the amended FCA now requires non-criminal background checks to be a completed prior to making a conditional offer. Therefore, employers should use terms like “consumer report” or “investigative consumer report” when getting approval from candidates to run non-criminal background checks.
- Factoring in Fair Chance Factors
Prior to the amendment of the FCA, employers, when withdrawing a conditional offer due to an applicant’s conviction history, had to first analyze Article 23-A of the New York Correction Law. There’s now a new set of factors called the Fair Chance Factors that employers must use to analyze applicants/current employees with pending cases, as well as current employees with convictions that occur during employment.
The amended FCA also increases the minimum period of time candidates and employees have to respond to this analysis from 3 to 5 business days.
StraightforWARD Legal Advice:
The FCA’s amendments have greatly expanded the scope of an already far-reaching law. Updating policies, hiring practices, and training will be necessary for NYC employers. For help with FCA compliance, contact Jennifer Ward at 215-647-6601 or firstname.lastname@example.org.