Understanding New York City’s Fair Chance Act

Several “Fair Chance” or “ban the box” initiatives nationwide have been introduced or updated over the past year. Take, for example, the new Federal Fair Chance Act and changes to California’s Fair Chance Act. Adhering to local, state, and federal Fair Chance and ban the box laws can at times feel like swimming through glue. You want to prevent fragmented stop-go hiring decisions. So, getting a clear grasp of these guardrails for fair and equitable hiring decisions can help.

Like others throughout the US, New York City has its own version of a Fair Chance Act (FCA).  In a city of skyscrapers, NYC’s FCA is just as multistoried at New York City itself.  Let’s make sense of the many levels of the current FCA law.

Since 2015, the NYC FCA has placed restrictions on how employers can use certain criminal history information. Read the full text of the current NYC FCA here (see subsections 10, 11, and 11-a of section 8-107).

The NYC FCA creates obligations and responsibilities for employers in New York City.  Keep reading to learn about more about the requirements of the FCA.

NYC FCA Bans Some Language in Employment Ads

On job posting for open positions, you may need to watch what you say.   What are employers banned from saying? The FCA states that employers can’t, with certain exceptions:

• Declare, print or circulate any solicitation, advertisement or publication or cause such, which expresses any limitation or specification in employment based on a person’s arrest or criminal conviction.
• Represent that any employment or position, that is otherwise available to a person, is unavailable due to a person’s arrest or criminal conviction.

FCA Imposes Restrictions on Using, or Asking About, Certain Criminal History Information

With certain exceptions, the FCA makes it an unlawful discriminatory practice for employers to:

• Deny employment to an applicant or take adverse action against an employee by reason of the individual’s conviction of one or more criminal offenses, or by finding a lack of “good moral character” due to criminal convictions, when the denial or adverse action would be in violation of state law.[1]
• Deny employment to an applicant or take adverse action against an employee, or inquire of an applicant or employee about any criminal accusation or arrest when such denial, adverse action or inquiry would be in violation of state law.1
• Make any inquiry or statement to an applicant related to a pending arrest or criminal conviction record until after extending a conditional offer of employment.
  • “Any statement” is a statement communicated to the applicant for the purpose of obtaining their criminal background information regarding an arrest record, a conviction record, or a criminal background check.
  • “Any inquiry” is any question directed to an applicant or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.

Special Pre-Adverse and Adverse Action Requirements for Certain Job Applicants in NYC

 If the restrictions outlined above are applicable, after extending a conditional offer of employment to an applicant, an employer can inquire about an applicant’s arrest or conviction record.  If such employer decides to take adverse action against the applicant based on their arrest or conviction record, they have to engage in NYC’s unique “Fair Chance Process.”  Here’s what needs to happen before taking adverse action. An employer must:

• Provide a written copy of the arrest or conviction record inquiry in a manner determined by the NYC Commission on Human Rights (NYCCHR).
• Perform an analysis of the applicant under Article 23-a of the New York Correction Law. They must provide a written copy of the analysis to the applicant in a manner determined by the NYCCHR.
  • They must include the documents that formed the basis for the adverse action and their reasons for taking such action.
• After giving the applicant a copy of the inquiry and analysis, allow them at least three business days to respond. The covered employer must hold the position open for the applicant during this time.

The NYCCHR provides additional guidance on the FCA, available here.

The city recently enacted several amendments to the FCA that take effect on July 29, 2021.  Check back next month for the details on these amendments. Employers may wish to discuss the NYC Fair Chance Act with their legal counsel. Legal guidance may help you make sure you stay in compliance with the law.

[1] These requirements apply to all employers that may be required to comply with the NYC FCA.  All other provisions do not apply to employers that have fewer than four persons in their employ at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of the unlawful discriminatory practice.