If you are an employer who requests background screening reports on applicants and/or employees who live or work in New York City, including its five boroughs, this alert could impact you. We wrote in January 2021 that New York City updated its Fair Chance Act (FCA), which goes into effect on July 29, 2021. Please revisit the blog post for more details, including our discussion about new protections for those with violations and non-criminal offenses, non-convictions, and employees. This blog post specifically focuses on the New York City Commission on Human Rights’ (NYCCHR) legal enforcement guidance, which was issued on July 15, 2021. This guidance provided clarification about when criminal records, including driving records, can be considered and what process must occur in order to do so.
The NYCCHR legal enforcement guidance states that employers should first evaluate all non-criminal screening information, such as employment or education verifications, and then, after making a conditional offer of employment, evaluate all criminal record information, including driving records. AccuSource highly recommends that you review the NYCCHR guidance with your legal counsel to determine how you should approach your screening of New York City applicants and employees, considering the timing of conditional offers. Employers may be able to adjust their internal review process to first review non-criminal information separately, and then evaluate criminal information. If, after speaking with your legal counsel, you determine that you do not wish to update your internal processes to meet these new requirements (i.e., separating your review of non-criminal versus criminal results to consider criminal records only after a conditional offer has been made), please contact AccuSource.
It is also important to note that the NYC Fair Chance Act Notice, a sample form that helps employers conduct assessments, has been updated. The update incorporates the relevant fair chance factors that must be considered by an employer for different situations. For example, an employer must consider New York Article 23-A factors when considering arrests or convictions preceding employment, other than arrests or criminal accusations that are pending at the time of application for employment. The employer must consider the NYC Fair Chance Act factors when considering arrests or criminal accusations that are pending at the time of an application for employment and arrests or convictions that have occurred during employment. On AccuSource’s side, we will replace the prior version of the notice to the updated version, which includes the form used in our adverse action tool. We recommend that you do the same if you access the form outside of AccuSource’s screening software. Finally, if you inquire about criminal history during your hiring process, you should review the updated NYC FCA law and related guidance to ensure that you are compliant.
The information provided in this post is for informational purposes only and AccuSource is not providing legal advice. AccuSource strongly recommends that you review with your legal counsel before making any updates to your background screening program. If you would like AccuSource to provide a complimentary review of your current background screening compliance program, please contact us at firstname.lastname@example.org.