On July 29, 2021, New York City’s Fair Chance Act amendments became effective, making the city’s employment background check regulations among the strongest in the nation. The amendments require a two-stage background check process, first with a non-criminal check and then a separate criminal records check. The amendments also expanded the analysis of employees’ criminal records and applicants’ pending charges.

The New York City Commission on Human Rights has provided clarification on these expanded protections through legal enforcement guidance.

Previous Requirements That Remain The Same

The Fair Chance Act (FCA) mandates that New York City employers must take into account specific factors before rejecting a job applicant based on their conviction history if it is relevant to the job or poses a risk to property, people, or public safety. These factors are listed in Article 23-A of the New York State Corrections Law and still apply to pre-employment conviction history. The FCA also:

  1. Prohibits employers from asking about criminal history until a conditional offer of employment is made.
  2. Requires employers to give the applicant a written notice and analysis of the reasons for withdrawing the offer.
  3. Gives the applicant at least five business days to respond before the offer can be withdrawn.

These rules remain in effect, except that job applicant are now provided at least five days to respond to the employer’s notice.

Article 23-A factors applicable to an applicant’s conviction history are:

  • The state of New York policy encourages the licensure and employment of individuals previously convicted of one or more criminal offenses.
  • The responsibilities and duties required for the job the person is seeking or currently holds.
  • The impact, if any, of the prior criminal convictions on the person’s ability to fulfill the job duties and responsibilities
  • The elapsed time since the commission of the criminal offense(s), not since arrest or conviction.
  • The individual’s age during the commission of the criminal offense(s), not the age at the time of arrest or conviction.
  • The gravity of the offense(s) committed.
  • Evidence or information of the person’s rehabilitation or good conduct presented by the person or on their behalf.
  • The employer’s justifiable concerns for protecting property and the safety and well-being of specific individuals or the public.
  • Whether the person holds a certificate or has been granted relief from disabilities or good conduct, which would presume their rehabilitation.

Fair Chance Act Expansions:

The modifications to the FCA significantly expand employment protections by implementing the supplementary guidelines listed below.

Criminal History Cannot Be Mentioned in Job Advertisements, Notices, or Fliers.

Employers cannot include language in job advertisements or postings that would discourage those with a criminal history from applying. This includes statements indicating that such individuals are not welcome to apply or comments regarding background checks before extending a conditional offer of employment, such as compliance with laws protecting those with a criminal history.

Two-Step (Bifracated) Requirements

1. The Pre-Offer Stage: Preliminary (Non-Criminal) Screening:
Before making a conditional job offer, recruiting managers should record how they looked at applicants’ non-criminal histories (also known as their Other Background Information). Due to the possibility of references to criminal histories appearing in driving records, the NYCCHR cautions employers against reviewing them before making a conditional employment offer to an applicant. (See FCA guidance page 14 ).
Dependence on Third-Party Organization before extending a conditional offer of employment:
An employer who plans to use a background check firm (a third-party consumer reporting agency) to gather or examine a candidate’s references, educational background, and employment history must inform the candidate of its plans, get their written consent, and evaluate the report they receive—with the exception of any data pertaining to criminal histories.
Disclose, Don’t Deter:
Employers must not disclose that a criminal background check will be conducted at this point or any later in the process while requesting permission to gather background information. In fact, the NYCCHR advises against even using the word “background check” at the moment because it is frequently connected with the investigation of criminal histories and may discourage some suitable candidates from moving further with the employment process. Instead, the NYCCHR advises using the phrases “consumer report” and/or “investigative consumer report” as specified in the federal Fair Credit Reporting Act (“FCRA“) when requesting permission to carry out these checks before making a conditional offer.
Evaluate Records In Stages:
The NYCCHR recommends companies using consumer reporting agencies to review Other Background Information should request two distinct reports from the organizations:
  1. First Report: All non-criminal information or Other Background Information should be considered here. Prior to proceeding to the conditional offer stage, any choice to quit evaluating a candidate in light of the initial report should be made. In this situation, the employer is obligated by the federal FCRA to follow the “notice of intent to take adverse action”/”adverse action” process.
  2. Second Report: This report, being the After the conditional offer, should include the driver’s records and any criminal information.

The NYCCHR recognizes that employers may want to receive this information in one report or, oftentimes, CRAs (background screening companies) cannot provide two separate reports. In this case, it is up to the employer to demonstrate they did not take such information into account at the pre-offer stage. While it’s not illegal to receive criminal information before making a conditional offer, it is if an employer were to rescind their offer because of it at the pre-offer stage.

Conditional Job Offer

Define the position: Before making a conditional offer, employers must outline the job’s duties and responsibilities. After making a conditional offer of employment, if an employer changes the job’s tasks and responsibilities in a way that disqualifies the applicant, there is a rebuttable presumption that the employer did so as a cover for unlawful discrimination.

Explain the conditional offer: A candidate must first get a conditional employment offer from the employer before the employer may undertake any criminal background checks on the applicant. The offer must disclose that it is subject to acceptable information in a consumer report or investigative consumer report.

Post- Offer Screening

Gather Additional History as Required: As previously stated, consent from the applicant is required for any pre-employment investigation of criminal histories or other background information. Employers may inquire about criminal history at this time but not about arrests that are still pending, convictions that have been sealed or overturned, or “non-convictions.” NYC companies must give employees a copy of Article 23-A of the Correction Law before performing a criminal background check.

What This Means For Employers

To ensure compliance with the FCA modifications and the commission’s recommendations, employers should assess their present job ads, applications, and background screening procedures. The FCA adjustments and any modifications to the employer’s practices must be explained to managers and human resources staff.

Employers must also ensure that they have a two-step pre-employment screening procedure and work with consumer reporting organizations to coordinate this. Employers that believe an exception could apply to them should carefully analyze the commission’s recommendations, especially if a specific employee’s illegal behavior is not covered by a statute that calls for the employee’s termination. Given the significant modifications to the FCA, businesses are advised to speak with an employment lawyer before implementing the changes in their procedures.

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.