The New York City Council was busy during the holiday season, passing bill Int. 1314-A on December 10, 2020. The bill greatly expands the scope of the New York City Fair Chance Act (FCA), which is the city’s ban the box law. The bill was enacted on January 10, 2021. It specifies that a conditional offer of employment can only be revoked in limited circumstances, including based on the results of a criminal background check that adheres to the FCA’s requirements. The previous version of the FCA prohibited employers from taking certain actions before extending a conditional offer of employment. The new bill expands that restriction. Now, if an employer wishes to revoke a conditional offer or take adverse action against an employee based on a pending criminal charge, arrest, or accusation, the employer must conduct an individualized assessment based on seven factors. These factors are similar to those under New York Article 23-A.
An employer must consider whether the individual was twenty-five years old or younger at the time of the offense and must also consider any additional information provided by the applicant or employee regarding rehabilitation or good conduct. This evidence can also be provided by another party on behalf of the individual. Upon reviewing the seven factors, the employer can withdraw the conditional offer if it concludes that there is either a direct relationship between the underlying conduct and the employment, or that granting employment or continuing employment would lead to an unreasonable risk to property or the safety or welfare of the general public or specific individuals. If an employer wishes to revoke the offer based on one of these reasons, it must provide the applicant or employee with an FCA notice that outlines the employer’s analysis. It must then provide time for the individual to respond, allowing three business days from the receipt of the notice. The individual can provide documentation or information that the employer must then consider. After that point, the employer can withdraw the conditional offer or otherwise take adverse action.
The bill also updates the FCA related to the inquires that employers are permitted to make. Employers can no longer inquire about non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or sealed offenses. Additionally, employers cannot inquire about or deny employment based on violations and non-criminal offenses. This prohibition does not include motor vehicle records. The new bill also updates the FCA process related to convictions. Employers must now review the FCA factors and provide notice before taking adverse action for criminal convictions that arise during employment.
Employers are also greatly limited to when they can revoke conditional offers of employment, allowed to revoke an offer only if one of three conditions is met. First, it can be withdrawn based on the results of a criminal background check but only after the employer has followed the FCA process. The second option allows withdrawal based on the results of a permitted medical exam. Finally, the employer can revoke the offer based on other information that the employer could not reasonably have known before making the conditional offer if the employer would not have made the offer based on that information. The employer must show that the information is material in order to use the third option to justify revocation.
Under the updated FCA, it is no longer sufficient for an employer to ask only for evidence of rehabilitation and good conduct from the individual. Now, an employer must affirmatively solicit information that will be part of their analysis. This includes the facts and circumstances surrounding criminal convictions. Because of the significant changes made to the FCA through Int. 1314-A, impacted employers should review carefully with knowledgeable counsel to determine how they can best comply with the new requirements. If you would like AccuSource to provide a complimentary review of your current background screening compliance program, please contact us at email@example.com.