In 2019, The Fair Chance to Compete for Jobs Act was enacted as part of the federal “ban the box” policy. According to the National Employment Law Project (Nelp), one in three adults have a criminal record. With the law in effect, 700,000 new applicants with records are estimated to have a fairer chance to compete for jobs.
To promote inclusivity of the broader New York City labor pool, the New York City Council passed Bill Int. 1314-A, which extends to protect more individuals and define grey areas within the act.
What is the Fair Chance Act?
The Fair Chance Act (FCA) protects applicants from disclosing their criminal history prior to receiving a conditional job offer. The basis for this act is to allow candidates to be evaluated based on their qualifications only.
This act prohibits most New York City employers from inquiring about a candidate’s criminal record through ads, applications, interview questions, or from searching public records — prior to offering conditional employment.
Under the Fair Chance Process, employers have the right to withdraw their offer of conditional employment if they discover: (i) a criminal conviction that could be a risk relating directly to the job; or (ii) an unreasonable risk or safety concern to specific persons, the general public or the property, if employed. When considering rescinding an offer, employers have to run an individualized assessment of Article 23-A Factors.
If an employer decides to rescind the offer after completing the Fair Chance Process, they must provide the applicant a Fair Chance Notice that includes: (i) a copy of the inquiry; (ii) the Article 23-A factors; and (iii) the Article 23-A assessment performed. The employer must then: (iv) give the applicant three business days to respond while the position is held open; and (v) (if applicable) assess the applicant’s rebutted information to see if it changed the results of the Article 23-A assessment.
Changes to the Fair Chance Act.
As an amendment to the NYC FCA, Bill Int. 1314-A imposes more restrictions on an employer’s ability to take adverse action against an applicant or current employee based on pending criminal charges or arrests.
- The FCA will apply to job applicants AND current employees. Employers must conduct the Fair Chance Process with current employees when considering the recall of a promotion, disapproving of a transfer, or terminating employment.
- Independent contractors and freelancers are protected. The FCA is part of the NYC Human Rights Law. Since the law recently extended to treat independent contractors and freelancers as employees, the Fair Chance Process must be applied to these individuals.
- Employers cannot inquire about criminal convictions OR pending arrests and criminal accusations until after extending a conditional job offer to an applicant. Employers can’t revoke a job offer or terminate employment based on a pending arrest or criminal accusation without undergoing the Fair Chance Process.
- At any time, employers can’t inquire about or consider certain criminal history including (1) violations; (2) non-criminal offenses; (3) non-pending arrests or criminal accusations; (4) adjournments in contemplation of dismissal; (5) youthful offender adjudications; or (6) sealed offenses. Traffic infractions are not included.
- New factors to consider for pending matters. When deciding to take adverse action on a candidate or employee for pending criminal accusations, convictions or pending arrests, new factors (similar to Article 23-A Factors) will require employers to consider: (i) whether the person was 25 years of age or younger at the time of the criminal offense; and (ii) information concerning rehabilitation, history of positive performance and good conduct on the job and in the community.
- Misrepresentations excluded from the law. Employers can take adverse action against an applicant or employee who intentionally misrepresented their arrest or conviction history, so long as the adverse action is not based on a failure to disclose information not required to be divulged. The employer will need to provide the applicant or employee with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and give the person a reasonable time to respond.
- Changes to the “conditional offer of employment” regulations will place the burden on the employer to prove they would not have made the offer regardless of the results of the criminal background check.
- Employers are required to solicit information from applicants and employees regarding any relevant fair chance factors. Failure to do so would constitute a violation of the Fair Chance Process.
- Applicants have a longer time to respond to the Fair Chance Notice. Applicants can offer rebuttal evidence within three to five business days while the employer holds the position open. Current employees are offered the chance to provide rebuttal evidence in a “reasonable time” before an employer can take adverse action.
- Employers can place employees on unpaid leave during the Fair Chance Process.
What does this all mean for NYC employers?
The law will go into effect on July 29, 2021. During this time, NYC employers should prepare to:
- Review policies and procedures. NYC employers need to assess their current policies, procedures, and practices around hiring and conducting criminal background screening to ensure compliance.
- Use a third-party background screener. NYC employers should partner with a third-party background screening provider to ensure they are not soliciting information that is illegal to obtain.
NYC employers might also want to consider implementing a two-tiered screening process. In the first tier, employers are provided everything but criminal background history to consider before making a conditional offer. In the second tier, employers can review criminal history after the applicant passes all other pre-employment screening and a conditional offer of employment is made.