Fair Chance Act Continues New York City’s Pattern of Out-pacing New York State in Hiring Practices

New York City continues to outpace the rest of New York State in terms of regulating hiring practices, and city employers are the ones who have to keep up.

The final phase of NYC’s Fair Chance Act went into effect August 5, 2017. As a reminder, the Fair Chance Act essentially bars NYC employers from investigating an applicant’s criminal record until a job offer is on the table. The exceptions are when employers are required by law to conduct criminal background checks for employment purposes or hiring for a particular position, as well as hiring any type of law enforcement officer.

This final phase includes the following provisions:

• Employers risk a per se violation if they include criminal history in their standard job applications
• Employers must request clarification, and any information related to rehabilitation or good conduct, regarding any criminal charge found during an applicant’s background check
• Employers must provide applicants with complete and accurate copies of any information involving criminal history
• Employers risk a per se violation if they ask applicants about their criminal histories before a conditional employment offer is made
• Employers are not required to go through the Fair Chance Process after making a conditional employment offer if the applicant has a pending criminal case, as long as the offer is withdrawn because of the pending case and not their criminal history

This last provision is one employers need to remember the most, since it can lead to potential law suits if the applicant claims the employer used his or her criminal history as the reason why the conditional offer was withdrawn. Employers must use the Fair Chance Process in these situations to avoid such claims. The process involves:

• Providing the applicant with a written copy of the criminal record inquiry
• Investigating the applicant’s criminal record using the eight criteria listed under Article 23-A of the New York Correction Law:
  • Considering the state’s public policy of encouraging employment of people with criminal backgrounds
  • Specific duties and responsibilities related to the position
  • Any bearing the criminal offense(s) have on the applicant’s abilities to do the job
  • How much time has elapsed since the offense(s) took place
  • Age of the person at the time of the offense(s)
  • The seriousness of the offense(s)
  • Information provided by the person or on the person’s behalf about rehabilitation and good conduct
  • The employer’s legitimate interest in protecting property and public safety
• Providing a written copy of the employer’s analysis of the applicant’s criminal history and the employer’s decision to withdraw the conditional offer of employment
• Allowing the applicant at least three business days to respond to the analysis, during which time the position must remain open

New York City employers must also take special care about avoiding additional discrimination claims under the federal Civil Rights Act when considering an applicant’s criminal history. Withdrawing a conditional job offer based on someone’s criminal history could additionally imply discrimination against someone’s race, gender, age or other classes protected under Title VII.

While the Fair Chance Act utilizes some state guidelines, it is a New York City law that exceeds what the state provides. The state allows people to seal all criminal records involving cases that were dismissed, resulted in a conviction for a violation, or were tried under youthful offender status. It also allows people to seal up to two felony or misdemeanor convictions made prior to October 2007, as long as they didn’t involve violence, sexual assault or first-degree drug possession or sale. Under state guidelines, employers cannot see the specifics associated with the criminal records, and they cannot use a sealed conviction as a reason to deny or terminate someone’s employment. The Fair Chance Act further limits New York City employers by not allowing them to investigate an applicant’s criminal record until there is a conditional job offer, and they cannot use a criminal record as a reason to deny employment.

If New York City employers have not already done so, they should make changes to their hiring processes to comply with the Fair Chance Act. Consulting an experienced labor and employment attorney is a good way not only to ensure compliance with current city standards, but also to keep up with other changes in city, state and federal laws.

Nicholas Devyatkin, Esq. is a labor and employment attorney at Tully Rinckey PLLC’s Manhattan office. He represents employees in federal, state and private employment law matters, including claims of discrimination, harassment, retaliation, whistleblower actions, prohibited personnel actions, disability retirement applications and disciplinary matters.