New York City: New Guidance Issued for Fair Chance Act

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According to an advisory released by NAPBS, New York City’s Commission on Human Rights has issued updated legal guidance in regards to compliance with the Fair Chance Act and the NYC Human Rights Law.

The guidance specifically states that “inquiring” includes conducting a criminal background check (either by the employer or a third party screening service), and requires a number of specific steps an employer must take. Furthermore, if an employer considers withdrawing a conditional offer, the employer must disclose to the applicant a complete and accurate copy of the criminal history information along with the date and time the employer accessed the information.

Employers would be well-advised to review the Fair Chance Act in its entirety along with their legal counsel. A summary of the process for employers includes:

  • If an employer inquires about an applicant’s criminal history, they may do so only after conditional offer of employment and if the inquiry is in the form of a question. The commission provides the following permissible question:
    “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.”
  • If the inquiry or background check uncovers conviction history but the applicant is hired, no further action is required under the Fair Chance Act; however, if the employer considers withdrawing the conditional offer, the “Fair Chance Process” is triggered which includes a review under NY Article 23-A.  This review requires the employer to:
    • Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history (see above);
    • Share with the applicant a written copy of its Article 23-A analysis (the enforcement guidance outlines the specific analysis required); and
    • Allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.

The above process also applies to temporary help/contract labor positions.

The full text of the legal guidance can be found on the NYC Commission on Human Rights website.