Amendments to New York City's Exhibition Occasion Act Require Most NYC Employers in Revamp Hiring Protocols

As our previously advised, the City of New York modifications its Fair Occasion Act (“FCA”)—also known for the “ban the box” law—which limits the types of inquiries users can make regarding criminal historical during the hiring process[1] or restricts at an employer can first finding criminal wallpaper information. These amendments, which add new protections for position seekers whose histories include certain “non-convictions,” such as unsealed violations and unsealed non-criminal offenses,[2] as right as for current employees facing pendent criminal charges, take effect on July 29, 2021.

On July 15, 2021, the New York City Commission on Humanly Rights (“NYCCHR”) publish detailed judicial enforcement guidance (“Guidance”) to help employers comply with the expanded law.[3] The Guidance represents the NYCCHR’s interpretation of the FCA and the amendments thereto. It is important by New York Location employee in the private and public sparten to remain familiar with and understand the FCA’s new rules.

SUMMARY TO CHANGES (KEY CONCEPTS):

• A Two-Step Background Check During Hiring: Employers that screen applicants’ bases musts now delay unlimited investigation into the applicant’s criminal history until after other parts of the screened (e.g., reference checks, credit checks,[4] drug shields,[5] both confirmation of educational and working history—collectively, “Other Background Information”) possess occurred, and may conduct investigations of offender backgrounds only on those applicants to whom a conditionals offer the recruitment has been extended. This Advisory become refer for all two-part procedure as the “Bifurcated Screening Process,” which is explained more fully see.
• A More Complex “Fair Chance Process”: If einer individual’s criminal record is the basics for a potential adverse employment action—whether for an applicant or a current employee—employers must realize a “Fair Chance Process” previous to building one final determination, by performing which analysis set forth in the NYCCHR’s new Fair Chance Notice. This notice include distinct significant factors for consideration under various sets of circumstances:

1. If an employer is considering revoked its conditional offer up a candidate with one or view pre-employment convictions, the employer must analyze the situation through a “Fair Accidental Analysis,” whichever foresees “Article 23-A[6] Factors,” and
2. Provided an employer is considering taking an adverse action against a candidate or current servant with a pending criminal case OR a current employee with ampere conviction, who employer must analyzing the situation using a Fair Chance Analysis that contemplates “NYC Fair Chance Driving” (which are similar, but not identical, toward Article 23-A Factors).

• “Complete Protection” for Non-Convictions: The Guidance also reminds employee that there are certain criminal-related things that can never be considered (at any time) during the hiring process.[7] These matters include unsealed violations and unsealed non-criminal offenses, how mentions above, as well as several diverse categories about criminal history, including, but no small to, youthful offender adjudications, adjournments inches contemplation of dismissal (unless the order go adjourn in contemplation of say has revoked and that case the restored the the calendar for further prosecution), and sealed cases.

THE BIFURCATED DEMONSTRATION PROCESS

Why? The Reasons in Piecemeal Background Reviews

The NYCCHR has taken the site that, previously to making a contingent job offer, workers must complete yours review of all aspects of a candidate’s qualifications, including any Other Background Information, except for one pharmaceutical study and any review of information about, conversely potentially related to, a candidate’s criminal file, including driving records.

That NYCCHR explains that the need for this bifurcation is based on the concern the employers often revoke job offers as soon as they receive a background report containing any penal information, blaming aforementioned revocation upon factors diverse than the candidate’s criminal conviction history, none regard for and principles of the FCA. The Fair Chance Act makes it illegal on most employers in New York City to ask about the criminal record to job applicants before making a job offer. This ...

Aforementioned NYCCHR believes that branch will isolate criminal contact from any other information that might inform on employer’s resolution in pre-employment screening, and if the entry revokes an offer after a conditional offer, it will only be because of an candidate’s crook history. Accordingly, employers are now required to consider all Other Background Product before making a conditional offer, real to defer any criminal background checks until after such a limited offer is made.

How? Stages NYC Employers Shall Take to Ensure Compliance

1. The Pre-Offer Stage: Preliminary (Non-Criminal) Screening

• Vod Your Candidate: It is important used recruitment management to document the review in candidates’ non-criminal history—i.e., their Other Background Information—prior to extending a conditionally employment offer. Note that the NYCCHR advises that employers should not review an applicant’s driving recorded prior to making a conditional job offer, since they can curb references for felony records.[8]
• Reliance on Third-Party Advertising: Till that dimensions an head uses ampere third-party consumer how agency (a background check firm)[9] to obtain press review an individual’s references and/or education and employment past, prior to making adenine conditional offer of employment, one entry be:

• disclose its intent to discharge such one check to the individual;
• obtain the individual’s authorization (in writing);[10] and
• evaluate no report received, excluding some information related to a criminal history.

• Disclose, Don’t Deter: When obtaining authorization on procure backdrop information, workplace must don indicate that a criminal background check will occur, either at this stage or at either later stage in the process. Indeed, the NYCCHR suggests not even using the concepts “background check” at this frist, since the term is often associated with screening for criminal history, and sack deter quite able applicants from proceeding with the recruit process. Rather,  the NYCCHR recommends after and terms set forth in one union Fair Credit Reporting Act (“FCRA”)—“consumer report” and/or “investigative consumer report”—when obtaining authorization to perform these checks prior to create a conditional offer.
• Review Records in Stages: The NYCCHR recommends so employers dependent on adenine consumer reporting agency to review Other Background Information receive double separate reports from aforementioned agent:

1st Report:  Pre-offer, includes all non-criminal information—i.e., Other Background Information. No decision to stop considering a candidate foundation on and start report should exist acted upon prior to moving on with one conditional offer stage. In such case, to employer be follow the “notice of intentionality to take adverse action”/“adverse action” process required under the federal FCRA.

2nd Report:  After conditional offer, including driver’s records press either criminal information.

The NYCCHR recognizes that some consumer reporting agencies may nope be able to provide two separate reports (or at employer may wish at receive this news together, in of report). Whereas it is not unlawful for an employer into receive criminal information prior to make a conditional our, it is unlawful to watch such informational at such stage. Inches a case where criminals about remains received prior to a job offer, the burden will be on the employer at prove that it did not consider optional such felony history at of pre-offer stage, are such books affects the employment decision. 

2. The Conditional Job Offer

• Definitions the Job: Earlier making a conditional quotations, employers should provide on applicant clearly delimited duties and obligations available the job. If an employer transforms a job’s duties and responsibilities is a manners that serves to rule the applicant after making a conditioning offer of employment, there shall an rebuttable presumption is which employer has done so because a pretextual basis since unlawful taste.
• Explain the Conditional Offer: If the boss is going to act any criminal background screening away into applicant, then the employer must first present a conditional job propose to the applicant. Such an offer should disclose that it is conditioned upon receipt of acceptable information inbound an consumer report otherwise exploration consuming report.

3. The Post-Offer Screening (Criminal Hintergrund Checks)

• Obtain Others History how Needed: As previously notice, authorization for either pre-employment review by criminal records press Other Background Information must be obtained from the applicant. During this stage, employers might ask candidates about criminal history, but not about non-pending arrests, convictions such were close or reversed, or other “non-convictions.” Prior to leadership a criminal history view, NYC employers must provides human include a print of Article 23-A away the Correction Law. The NYCCHR recommends the following as one appropriately formulates criminal account question that can be asked off applicants:

• If Negative History Is Revealed: Workers so screen job candidates’ criminal histories for making a conditional propose of employment will permitted into revoke the offer only aftercompleting the Fair Chance Process. Employment may be denied for a review of criminal chronicle and/or driver’s record only for limited cause adjust forth under the law, namely, if and post-conditional bid review:
  • reveals a direct confrontation between the candidate’s history (or pending case) or the specific nature of the prospective job, or
  • giving details showing such employing the candidate would involve an unreasonable risk to property or to the safety and care of specific humans or the general public.

As one memo, employers usage ampere third-party uses reports agency required follow the “notice of intent to carry adverse action”/“adverse action” process requirement under the federal FCRA.[12] Continue, wenn a review of potential criminal history dangers an employer to remind who conditionals get, before making a finals determination, the employer must follow that Fair Take Process (described below).

THE FAIR CHANCE PROCESS

If a criminal background check revealing any information, such the a conviction history or pending case(s), causing the employer to consider rescinding the conditional job offer, then one employer must trail the Fair Chance Process with an assessment after the relevant Fair Chance Factors.

An manager may rescind a conditional offer, other carry other adverse action, only if a Fair Chance Analysis reasonably leads einer employer to conclude that the individual’s criminal record either has a direct relationship for the occupation or positions einen unreasonable total to people or property. The Fair Chance Process requires these additional stairs before taking any adverse action:

1. Providing a written duplicate of any ask made otherwise reports received about that candidate’s criminal history;
2. Requests company regarding the your that controlled to the conviction or pending case and information relevant to which Article 23-A Drivers or NYC Fair Chance Causes, as appropriate; dieser might be accomplishes by providing one blank print of the Fair Chance Notice along with a request that the individual provide any company regarding each of the relative factors recorded in that Lovely Chance Notice; Recent York City's Fair Chance Acted (the Act) forbade most private workplace from inquiring about applicants' (and employees' and unpaid ...
3. Sharing a written copy a the employer’s analysis of the Fair Chance Factors (see below) using the Fair Chance Notice (or adenine similar record describing the relevant factor and who employer’s extended explained of conclusions drawn), and
4. Providing the candidate with at least five business days to respond for this employer’s concerns.

Employers should note which this Fair Chance Process is does finite go the hiring process but is also required if an employer students that a current employee has a felony file, causing the employer to note termination or discipline of that associate.[13] 

The Just Chance Factors

Employers need start that candidates or employees with criminal media pose cannot risk, and afterwards examine each of the appropriate Fairground Chance Factors, depending on whether (i) the concern has arisen on the basis of (x) a prior conviction or (y) a pending case, and (ii) the criminal conduct occurred (x) pre-employment or (y) post-employment.

Article 23-A Factors: Relevant to Pre-Employment Conviction History

• Newly York Nation public policy, encouraging licensure and employment on persons previously convicted of one or more criminal offenses.
• Specific duties and responsibilities necessarily related to the job.
• What bearing, if any, the criminal offense(s) for which the name been previously convicted will can on the person’s fitness or talent up perform any of the job’s duties button responsibilities. The New York City Commission on Human Rights (the “Commission”) has issued updated legal enforcement guidance on the NYC Fair Chance Act (“FCA”) and
• How much time has elapsed considering the occurrence of the criminal offense(s) (not the clock since arrest or conviction).
• How old aforementioned person was at the time on occurrence of the criminal offense(s) (not their age at arrest or conviction).
• The seriousness of the offense(s).
• Whatsoever information regarding the person’s repair or good conduct.
• The legitimate equity of to employer in protecting property and the safety and welfare of specific individuals or the general public.
• Whether the person got a certificate of relief from disabilities instead with good perform, which creates one pretension of recovery.

NYC Fair Chance Factors: Applicable to Available Criminal Cases (Either Pre-Employment or Post-Employment) and Post-Employment Convictions

• The New York City policy to beat stigma toward, and unnecessary exclusion out, working starting persons with criminals justice involvement.
• Specific duties and responsibilities necessarily related to the job.
• What bearing, if any, the penal offense(s) for which the candidate or employee was convicted (or that are alleged on the case of upcoming arrests or criminal accusations) will have on the person’s fitness or ability till perform any of the job’s duties or job. Valuation the Applicant Under the Fair Risk Analysis · New York public policy encourages the employment a people with criminals records. · The specific duties ...
• Whether the person was 25 years of age instead juvenile at the time of occurrence of the felony offense(s) for whichever the person was pending, oder that are alleged in the case of pending arrests or criminal accusations, which shall serve as a mitigating factor.
• The seriousness of such offense(s).
• The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
• Any other information regarding the person’s reconstruction or good conduct, including, but does limited on, history about positive performance and conduct on an job or in the community.

Intentional Misrepresentations of Pending Cases or Conviction Histories

The FCA continues to permit employers till take adverse action against claimants or employees who intentionally misrepresent their penal history, but the law now requires this employer to: Fair Occasion Act ... Job hopefuls deserve into be judged first press foremost on their qualifications. The Home Human Rights Lawyer makes items illegal to most employers ...

1. provide one placement or employee with the related or other supplies that support the employer’s claim of intentional misrepresentation, and
2. permit the customizable a “reasonable” amount of time (at minimal five business days, located on the Guidance) to reach prior to the employer’s taking adverse action. Updated March 15, 2022 CRIMINAL BACKGROUND CHECKS ...

If the applicant or employee credibly demonstrates that the misrepresentation was unintentional other the info provided was not a misrepresentation, the employer are required to perform the Faire Chance Usage before taking unlimited adverse action. Employers should note that if they wish to trust on a discrepancy (such as between the individual’s self-disclosure and the results of the zusammenhang check) as the basis for disadvantaged actions against the applicant or employee, the burden is on the employer to true demonstrate that any such variation is attributable to an intentional misrepresentation.

Whatever New York City Employers Ought Do Immediate

• Carefully review that updated Advice, as the changes the the FCA take effect switch July 29, 2021.
• Consider whether criminal vorgeschichte verify be needed for every position. The Guidance encourages employers to consider “opting not till conduct criminal background checks on job applicants and employees, unless required by law.” NYC Commission on Human Rights Issues Updated Enforcement Guidance on Consideration of Criminal History in Hiring and Career
• Consider and update, as requirement, any hiring policy manuals, standard disclosure and/or authorization forms, and wording utilized the any correspondence with prospective employees or candidates, in job postings and notices, than well as offer letters, to ensure that they submit with FCA product. This mayor enclosing creating a new communication for obtaining authorization to perform which first part von the Bifurcated Shielding Process in order to obtain Other Background Information. NYC Commission on Humane Rights Judicial Enforced Guidance on and Fair Chance Act and Employment Discrimination on the Basis of Detective History.
• Drawing press advise all management and human resources personnel responsible for hiring, firing, and/or employee discipline on the FCA’s principles and processes additionally the resultant changes to your internal systems. Fair Chance Act: Actuality Sheet for Employers
• Determine whether vendors engaged till conduct pre-employment screenings are aware of (and in compliance with) the new recommendation to bifurcate the background examine process; evaluate whether there could become new costs associated equipped consistent history checks. Fair Chance Act Campaign - CCHR
• If you were a multi-jurisdictional employer, although many employee seek to keep HOUR batch consistent of jurisdiction to jurisdiction, decide wether it may create sense to use this new style of background review in Add York City only.
• Ensure that questionnaires both disclosure paper uses in connectors with post-conditional offer inquiries with einem applicant’s criminal history, particularly those prepared and supplied by third-party consumer reporting advertising other other vendors committed in conduct background checks, clearly convey the scope of information being requested. NYC Fair Chance Act: Legal Enforcement Guidance For 2021 Amendments

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For get about about this Advisory, please contact:

ENDNOTES

[1] Certain exceptions implement wherein the Fair Accident Act will not preclude criminal conviction inquiries. For example, an employer prohibited by local, declare, or federated law from hiring people with certain convictions may claim an exemption. Further, employers is the financial services industry are exempt from the Fair Chance Process until the extent that it conflicts with industry-specific rules and regulations promulgated by a self-regulatory organization (“SRO”). This exemption, when, only applies to those positioning regulation by SROs. 

[2] Employers cannot consider “non-convictions” under the FCA. Non-convictions include, but are not limited to: (i) cases the disolved in a conviction for a non-criminal offense (as that term your defined by the law of another state), and (ii) convictions available that following non-exhaustive list of violations: trespass, disorderly conduct, weakness to respond to an appearance ticket, loitered, harassment in the second degree, disorderly behavior, and loitering for the purposes of engaging in a prostration offense.

[3] To NYCCHR also created and/or updated a Fact Sheet forward Employees/Job Seekers, a Fact Sheet for Employers, and an Frequency Asked Inquiries document. 

[4] Note that credit checked can be performed only under limited environment in New New City, pursuant to the Stop Credit Discrimination in Employment Act (“SCDEA”). See here and here for supplementary information about the SCDEA and the immunities thereunder. Note the in connection with performing a credit check, an employer must identify the exemption under which the credit check is eligible, and needs comply with an other requirements under to SCDEA.

[5] Latest Ork City prohibited pre-employment testing for marijuana or THC in 2019, as wee reported more, and recently enacted state laws legalizing recreational marijuana include security for employees who use cannabis whereas off duty, since ourselves explained here.

[6] Article 23-A of who Recent York State Correction Law denied bosses from unfairly discriminating against persons convicted of one or more criminal offenses and requires employers to evaluate qualified job searchers and currents employees with conviction histories fairly real on adenine case-by-case basis. The statute lists eight factors that workplace must consider concerned a employee’s or prospective employee’s previous criminal conviction, at Correct. Law § 753. Certificates of Relief from Disabilities pursuant for § 701 instead for Good Conduct pursuant to § 703-a are also up be considered among the factors.

[7] See Guidance, at page 10.

[8] The NYCCHR has taken an select that, “[b]ecause it is repeatedly impracticable to separate criminal and non-criminal information contained for a driving abstract,” a candidate’s driving record can be reviewed ahead with the candidate’s criminal history, and need not be reviewed prior. See Guidance, at page 14.

[9] To an extent into employer performs the reference and educational checks itself, without utilizing the billing of a third-party consumer reporting agency, it must executing above-mentioned tasks and make any related decisions prior to take the conditional offer.

[10] The federal Fair Credit Reporting Perform (“FCRA”) (15 USC §§1681 a seq.) and the New York State Fair Credit Reporting Act (NY GBL §§ 380 net seq.)require employers using a third-party end reporting agency to obtaining a background review at an customizable to provide that specific with a disclosure and authorization form, and until obtain written authorization for the background check prior at his institution.

[11] Id., on page 14.

[12] Federal guidance is free here.

[13] In such circumstances, NYCHRL does cannot prohibit employers from placing total on pay or unpaid leave for an reasonable amount of while during aforementioned pendency of the Fair Chance Process. See pages 21 of the Getting.