Fair Chance Act Guidance Updated for New York City Employers

Amendments to the New York City Fair Chance Act (NYC FCA) took effect on July 29, 2021. According to the New York City Commission on Human Rights (NYCCHR) the changes generally “…[add] new protections for people whose criminal history includes unsealed violations and unsealed non-criminal offenses.  [The amendments] expand the protections of the Fair Chance Act to cover current employees and to reach pending cases.”  The NYC FCA applies to specified employers in New York City.

Before the amendments took effect, the NYCCHR issued updated Fair Chance Act guidance for employers. The guidance outlines how the NYCCHR has interpreted the NYC FCA and has tips on actions for employers to take to remain in compliance with the updated law. The revised guidance includes valuable insights for employers in the city. The NYCCHR’s lengthy guidance covers a lot of information, but there are a few key clarifications within the guidance to consider:

1. Examples of Non-Conviction Records that Employers Can’t Consider.

As we discussed, in general, the NYC FCA now prevents employers from inquiring about, denying employment or taking adverse action based on certain non-conviction records. In its guidance the NYCCHR lists some of these types of records that qualify as non-conviction records including an arrest without conviction, dismissed charges, and more. While detailed, the list is not exhaustive. There may also be exceptions for some employers.

The guidance also provides recommendations on how to permissibly ask about conviction history without violating the prohibition on inquiring about certain non-convictions, including providing a model conviction history question that employers can use.  The NYCCHR notes that employers cannot disqualify a candidate based on their refusal to answer an unlawful question about non-convictions.

2. Details on How to Conduct a Fair Chance Analysis.

In New York City, employers are required to do a Fair Chance Analysis if they are considering taking adverse action based on an applicant or employee’s conviction history.   The recent amendments to the law established NYC FCA specific “relevant fair chance factors,” in addition to state law fair chance factors.  The NYCCHR’s guidance details both city and state fair chance factors and provides clarification on when each set of factors should be used to conduct a Fair Chance Analysis.

3. Information on Additional Employee Protections.

After the recent amendments, the NYC FCA now also applies to current employees, in addition to new job applicants. The law protects employees from criminal history backlash unrelated to their role. The guidance provides additional detail on the protections now extended to current employees.  This includes, among other requirements, more information on both the new Fair Chance Analysis and Fair Chance Process for current employees.

4. Information on Additional New Candidate Protections.

The NYCCHR guidance makes one thing clear: “unless an exemption applies, criminal history may not be sought or considered by employers before a conditional offer of employment.” This extends to omitting any mention of a “criminal background check” when disclosing or getting authorization for an employment related background check prior to a conditional offer of employment. The NYCCHR encourages employers to use alternative terms rather than “background check”. It prefers use of “consumer report” or “investigative consumer report” instead.

These preferred terms are also reflected in select sample compliance documents from Verified Credentials. We offer sample documents incorporating this guidance for employers that hire candidates that live or work in New York City to review as they create their own. Clients can find these in our Resource Library.

5. On Considering a Two-Phase Background Check.

The new guidance details what employers should not do or consider before making a conditional job offer. And what they should do and can consider after. The guidance states that requesting and reviewing criminal history can only happen after favorably evaluating an applicant’s non-criminal information.

In fact, the NYCCHR suggests that employers working with a screening company should receive background information in two stages. First, obtain non-criminal background information. If the applicant is still in the running after reviewing that information, and the employer extends a conditional offer of employment to the applicant, then the employer can look at criminal history background information.  Because driving records may contain both non-criminal and criminal information, the NYCCHR instructs employers to only consider and review driving records after a conditional offer has been extended.

Separate review of non-criminal and criminal information, according to the guidance, insulates the employer from potential discrimination liability.

The NYCCHR acknowledges that some employers may face challenges if they are unable to get two separate reports from their screening provider. In those cases, the employer must establish a system to separate information. That way decisionmakers don’t receive the criminal history information until after making a conditional offer. Employers who take this route bear the burden of proving  the criminal history information was inaccessible to decisionmakers only after the conditional offer was made.

While an uncommon practice, Verified Credentials has adapted the screening process into a two-part process for other employers. If you need to learn about this unique process, our team is happy to help!

If you have questions about how you should apply this guidance to your screening, contact your trusted legal team.