United States: NYC Fair Chance Act Restricts Employers' Consideration Of Criminal Background

The New York City Fair Chance Act (FCA) places significant obligations and restrictions on employers that consider criminal histories in the hiring process. Employers that fail to follow any of the multiple steps required by the FCA risk significant damages under the New York City Human Rights Law.

Under the FCA, New York City employers may not in any way inquire into an applicant's criminal history prior to extending a conditional offer of employment. Importantly, the FCA covers both external candidates seeking employment as well as current employees seeking promotions, transfers or other job changes. Both external and internal job advertisements, solicitations and employment applications cannot seek criminal background information — or even mention that a background check is required. Likewise, an applicant's criminal history cannot be discussed during a job interview. If the applicant voluntarily discloses his or her criminal history, the employer must explain that the criminal history cannot be considered at that time and change the subject.

Once a conditional offer of employment, promotion or job change is made, the employer may obtain information regarding the applicant's criminal history. If a criminal history exists, the FCA requires that the employer assess the applicant in accordance with New York Correction Law Article 23-A. Pursuant to Article 23-A, an employer may reject the applicant in only two circumstances:

To determine whether these exceptions apply, the employer must conduct an individual assessment of each criminal offense using an eight-factor test set forth in Article 23-A. Those eight factors are:

• the public policy of New York is to encourage the employment of persons previously convicted of one or more criminal offenses;
• the specific duties and responsibilities necessarily related to the employment sought or held by the applicant;
• the bearing, if any, the criminal offense(s) for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
• the time which has elapsed since the occurrence of the criminal offense(s);
• the age of the applicant at the time of the occurrence of the criminal offense(s);
• the seriousness of the criminal offense(s);
• any information produced by the applicant, or on his or her behalf, in regard to his or her rehabilitation and good conduct; and
• the legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

When assessing whether a direct relationship exists between the criminal offense and the job, the employer must analyze the crime against specific job duties and responsibilities that were defined (preferably in writing) prior to making the conditional offer of employment. When assessing whether the applicant would present an unreasonable risk to property or the safety and welfare of individuals or the public, the employer must begin with the assumption that no risk exists and then establish how the eight factors (combined or alone) create such a risk.

If, after conducting the eight-factor analysis, an employer determines that employment or the job change should be denied, the employer must send a written statement to the applicant setting forth the details of the eight-factor analysis and asking the applicant for any evidence of rehabilitation or good conduct. Along with this written statement, the employer must provide a copy of any of the documents the employer relied on (e.g., background check, Internet search results) and give the applicant at least three business days from his or her receipt of the statement to respond before making a final decision. The employer must keep the position open during the applicant's response period.

If the applicant provides supplemental information or documentation, the employer must then repeat the eight-factor analysis, taking into consideration the new evidence. If the employer still wants to revoke the employment offer or deny the promotion or job change, the FCA requires the employer inform the applicant of its final decision. Finally, if the applicant ever requests a written statement setting forth the reasons for the job denial, the employer must provide that statement within 30 days.

Given the FCA's multitier process, a formal criminal background check policy, including accurate record keeping, is highly recommended. There are per se violations for failing to meet each of the required obligations and significant monetary damages if applicants are denied jobs in violation of the FCA or Article 23-A. In addition, the New York City Commission on Human Rights has expressed its commitment to ensure employer compliance with the FCA and in 2018 conducted nearly 300 tests to determine whether employers were unlawfully asking applicants about their criminal histories. The Commission also announced it would be bringing 12 charges against national and local businesses for discriminating against job applicants with criminal histories. As a result, New York City employers are urged to consult with legal counsel to ensure compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.