NYC Fair Chance Summary - November 10th, 2015

Effective October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law (NYCHRL) by making it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants until after extending a conditional offer of employment. If an employer wishes to withdraw its offer, it must give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.

As of October 27, 2015, the following acts are separate, chargeable violations of the NYCHRL:

1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”

2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the NYCHRL:

a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;

b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;

c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond.

4. Taking an adverse employment action because of an applicant’s non-conviction

 

Inquiry Process

The FCA does not change what criminal history information employers may consider when making their decision, it does mandate that employers only seek this information after extending a conditional offer of employment. No employer may seek, obtain, or base an adverse employment action on a non-conviction. After a conditional offer of employment, an employer can only withdraw the offer after evaluating the applicant under Article 23-A and finding that the applicant’s conviction history poses a direct relationship or unreasonable risk.

Employers should review their hiring practices to ensure that solicitations and advertisements do not mention criminal history, hiring managers should be trained not ask or seek information regarding an applicant’s criminal history and applications should be modified to remove these questions.

After extending a conditional offer of employment an employer can inquire into an applicant’s criminal history. Employers can ask orally or in writing about an applicant’s criminal history or run a criminal background check.

Employers should not seek or use any information regarding non-convictions. The commission gives the following language to guard against impermissible inquiries:

“Have you ever been convicted of a misdemeanor or felony? Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.”

 

Evaluating the Applicant Using Article 23-A

When evaluating an applicant under Article 23-A an employer cannot deny employment unless it can:

  1. Draw a direct relationship between the applicant’s criminal record and the prospective job or
  2. Show that 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 must show that the applicant meets at least one of the exceptions to Article 23-A in order to withdraw the conditional offer because of the applicant’s criminal record.

An employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction record. The employer must evaluate the Article 23-A factors using the applicant’s specific information before coming to their conclusion.

  1. To claim the direct relationship exception, an employer must first draw some connection between the nature of conduct that led to the conviction(s) and the potential position. If a direct relationship exists, an employer must evaluate the Article 23-A factors to determine whether the concerns presented by the relationship have been mitigated.
  2. To claim the unreasonable risk exception, an employer must begin by assuming that no risk exists and then show how the Article 23-A factors combine to create an unreasonable risk. Otherwise, this exception would cover all convictions not directly related.

The Article 23-A factors are:

• That New York public policy encourages the licensure and employment of people with criminal records;

• The specific duties and responsibilities of the prospective job;

• The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;

• The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;

• The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction;

• The seriousness of the applicant’s conviction history;

• Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct;

• The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Employers must evaluate each Article 23-A factor; they cannot ignore evidence favorable to the applicant, such as certificate of relief from disabilities or good conduct, they should also review any past favorable employment and any other mitigating factors.

 

Denial of Employment

If after evaluating the applicant with the Article 23-A factors the employer wishes to decline employment because either a direct relationship or unreasonable risk exists, it must follow the Fair Chance Act Process:

1. Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history;

  • The commission requires an employer to disclose a complete and accurate copy of the information it relied upon to the applicant that it used to determine the applicant has a criminal record.

2. Share with the applicant a written copy of its Article 23-A analysis; and

  • The commission has prepared a Fair Chance Act Notice that employers may use to share the analysis with the applicant. The notice requires the employer to choose which exception, direct relationship or unreasonable risk. Template denials that list the Article 23-A factors are violations of the Fair Chance Act.

3. Allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.

  • Employers must give applicants a reasonable time, which the commission defines as no less than three business days, to respond to the employer’s inquiry and Notice. The position must be held open during this time period. It should be noted that the time period begins when the applicant receives the inquiry and notice.

Other Issues

Errors in the background check- If an applicant is able to demonstrate that there is an error in the background check, the employer must evaluate the corrected information, it cannot rely on the previously obtained information.

Misrepresentation of criminal history – If an applicant misrepresents their criminal history and cannot show that the information is due to an error in the background check, the employer can deny based on this information. They do not need to evaluate the applicant under Article 23-A.

Temporary Help/Staffing Firms – The legal guidance from the commission makes it clear that the Fair Chance Act applies to them as any other employer. The only difference is that the conditional offer of employment is to place an applicant into the firm’s labor pool, from which they may be sent on assignments to clients. Employers who accept placements from temporary help/staffing firms that wish to inquire into the individuals criminal history must also follow the Fair Chance Act.

Positions that Are Exempt from the Fair Chance Act:

  1. Employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions.
  2. Employers Required by a Self-Regulatory Organization to Conduct a Criminal Background Check of Regulated Persons.
  3. Police and Peace Officers, Law Enforcement Agencies, and Other Exempted City Agencies
  4. City Positions Designated by the Department of Citywide Administrative Services (“DCAS”) as Exempt

Employers claiming an exemption must be able to show that the position falls under one of the categories. The employer should inform the applicant of the exemption as well as keep a log of the exemption including, which exemption was claimed and how the position fits into the exemption and if applicable the law allowing the exemption.

Enforcement

The New York City Commission on Human Rights will enforce the Fair Chance Act. Violators face possible civil penalties, along with possible front and back pay, compensatory and punitive damages. The commission will base these factors on the severity, previous or contemporaneous violations, the employer’s size, and whether the employer know or should have known about the Fair Chance Act.