Effective July 29, 2021, New York City further tightens the reigns on employers by broadening the scope of its Fair Chance Act (FCA). The FCA was first enacted in 2015 to help people obtain employment based on their merits rather than their mistakes.

Movements toward fair chance hiring (aka ban-the-box laws) have gained momentum over the last several years, and there are no signs of them letting up in 2021. Here is an overview of the significant changes under the recent amendments to NYC’s FCA:

1. Expansion to the Protected Class

The FCA’s current version only applies to prospective employees; however, the amendments will broaden the scope to include current employees considered for internal promotions or transfers.

2. New Prohibitions Regarding Information that Employers May Consider

Previously, the FCA did not dictate what criminal history information employers may consider during the hiring process and only prescribed how and when employers could consider such information. Now, employers will be prohibited from considering certain information when making employment decisions, including:

(a) Violations committed under Section 10 of the New York Penal Law (offenses where sentencing is limited to 15 days imprisonment) and other non-criminal offenses defined by another state’s laws; and

(b) Non-pending arrests and criminal accusations (aka dismissed cases/charges), adjournments in contemplation of dismissal, youthful offender adjudications, and sealed convictions.

3. Changes to the “Relevant Fair Chance Factors”

Before employers take adverse action based on an applicant’s or employee’s criminal history, they must make one of the following determinations:

(a) There is a direct relationship between the criminal conviction and the job (now includes prospective and current positions); or

(b) The granting (and now continuation) of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.

Either of these determinations must be reached by considering the “Relevant Fair Chance Factors,” which now include:

(a) The policy of the city to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;

(b) The specific duties and responsibilities necessarily related to the employment held by the person;

(c) The bearing, if any, of the criminal offense or offenses for which the individual was convicted (or alleged in a pending case), on the individual’s fitness or ability to perform one or more such duties or responsibilities;

(d) The age of the individual (whether the individual was 25 or younger for current employees) at the time of occurrence of the criminal offense for which the NY was convicted (or alleged in a pending case);[1]

(e) The seriousness of such offense or offenses;

(f) The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public; and

(g) Any additional information produced by the individual or on the individual’s behalf regarding his/her rehabilitation or good conduct, including any history of positive performance and behavior on the job or in the community, or any other evidence of good conduct.[2]

4. Changes to the Adverse Action Process

Employers that wish to take adverse action against applicants or employees after making the required determinations described above must take the following steps:

(a) Disclose to the individual a written copy of the employer’s inquiry and analysis of the relevant criminal history information;

(b) Request from the individual information relating to the Relevant Fair Chance Factors; and

(c) Give the individual a reasonable time to respond (at least five days for applicants, while holding the position open);

The amendments include a statement that placing a current employee on unpaid leave for a reasonable amount time while the employer takes these required steps does not constitute “adverse action” under this law.

5. Additions Regarding Intentional Misrepresentations

The newly amended FCA includes a provision that allows employers to take adverse action based on an individual’s intentional misrepresentations about their criminal histories. Employers who wish to do so must still present written documentation regarding how and why the decision was made and give the applicant/employee time to respond to the determination. Note that “intentional representations” do not include information that applicants or employees are not required to disclose under relevant state laws, such as sealed and expunged records.

Final Thoughts and Considerations

Though NYC’s newly updated Fair Chance Act is fairly straight forward in text, wise employers will appreciate that all fair chance hiring laws are distinctly nuanced and that all employers are unique and therefore must make decisions based on their specific business and compliance needs. ESS recommends that employers consult with their legal counsel prior to the July 29th enactment date to ensure that all of their policies are compliant with the changes to the law.

About Employment Screening Services

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For help in implementing FCRA-compliant solutions for your background screening and drug testing program, visit us at www.ghrr.com, or contact one of our experts at sales@ghrr.com.

[1] Employers must consider the date of the offense – not the date of conviction.

[2] Previous guidance from the NYC Commission on Human Rights states that a certificate of relief from disabilities or good conduct should create a presumption of rehabilitation regarding the relevant conviction.

See https://www1.nyc.gov/site/cchr/law/fair-chance-act.page for more information.

Katie L Robinson, ESS Corporate Counsel

Disclaimer: The foregoing information is not offered as legal advice but is instead offered for informational purposes. Global HR Research is not a law firm and does not offer legal advice and this communication does not form an attorney-client relationship. This information is not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. Global HR Research makes no assurances regarding the accuracy, completeness, currency, or utility of the following information. Legislative, regulatory and case law developments regularly impact on general research and this area of law is subject to change frequently.

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