Update Applicable to:
All employers in New York.
On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued their updated Legal Enforcement Guidance on the Fair Chance Act (FCA) and Employment Discrimination.
What are the details?
Effective July 29, 2021, the guidance makes important amendments to processes on employee hiring, current employee assessment, and employment decisions based on criminal history.
The FCA amendments impact the sequence of events an employer must take to stay in compliance with a clarified “two-tiered” screening process. Employers must complete all non-criminal pre-employment screenings and they must be passed by the applicant before a conditional offer of employment is made. After a conditional offer of employment is made, the employer may request and review an applicant’s criminal history, which may only be considered in compliance with the individualized assessment, notice and consideration requirements of the FCA. The non-criminal and criminal background checks should be obtained separately from each other and at their specified points in the hiring process. Driving records should be reviewed after the conditional offer has been extended as they can contain non-criminal and criminal information.
Also explicitly stated is how a conditional offer of employment can be rescinded. The conditional offer to an applicant can be rescinded based on:
- The results of a criminal background check conducted in accordance with the requirements of the FCA;
- The results of a medical examination when permitted by the Americans with Disabilities Act, as amended; or
- Other information the employer could not have reasonably known before the conditional offer if the employer can show as an affirmative defense that, based on the new information, it would not have made the offer regardless of the results of the criminal background check.
The guidance does provide clarification regarding the consideration or inquiry of “non-convictions” which are characterized as “completely protected.” “Non-convictions” that may not be considered include, but are not limited to:
- Cases where no criminal charge was brought, or the prosecutor declined to prosecute following an arrest.
- Criminal charges that were resolved in favor of the individual, including when 1) all charges were dismissed; the individual was acquitted on all charges; or 2) the verdict was set aside or the judgment was vacated by the court and no new trial was ordered, nor is any appeal by the prosecution pending.
- Cases that were adjourned in contemplation of dismissal (unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution).
- Cases when the person is found to be a youthful (juvenile) offender.
- Convictions that have been sealed.
- Cases that resolved in a conviction for an act defined by New York law as a violation, rather than a misdemeanor or felony, even if not sealed, including but not limited to trespass; disorderly conduct; failing to respond to an appearance ticket; loitering; harassment in the second degree; disorderly behavior; or loitering for the purpose of engaging in a prostitution offense.
- Cases that resulted in a conviction for a non-criminal offense under the laws of another state.
The restrictions against consideration of non-convictions do not prohibit inquiries regarding or consideration of an applicant’s driving or motor vehicle record.
More significant changes were made to the application of FCA factors to the review, notice and consideration process to an employer’s consideration of open, pending criminal arrests and charges of applicants, and to consideration of the criminal convictions of current employees. The NYC Fair Chance Factors that are to be applied when considering pending criminal charges of applicants or employees, or convictions of current employees, are as follows:
- The policy of New York City to overcome stigma toward and unnecessary exclusion from employment of persons with “criminal justice involvement”.
- The specific duties and responsibilities necessarily related to the employment held by the person.
- The bearing, if any, of the criminal offense or offenses 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.
- Whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations, which shall serve as a mitigating factor (emphasis added).
- The seriousness of the offense or offenses.
- The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
- Any additional information produced by the applicant or employee, or produced on their behalf, regarding their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community.
The amended guidance is here.
What do employers need to do?
Employers should review the amended FCA guidance as well as their workplace policies to make any applicable updates to their screening and hiring processes to remain in compliance. The law firm, Littler Mendelson P.C., suggests that employers should consult employment law counsel versed in the FCA for assistance with these action items to ensure their background check processes comply with the FCA as amended.