In October 2015, the New York City Commission on Human Rights (“CCHR”) enacted the New York City Fair Chance Act (“NYC FCA”), which amended the New York City Human Rights Law. The original version of the NYC FCA makes it illegal for most impacted employers to ask about criminal records before making a job offer to an applicant. The law was amended by Local Law 4 in December 2020 with the updates effective on July 29, 2021. However, the CCHR did not issue legal enforcement guidance on the amendment until July 15, 2021. Neither the amendment nor the guidance provided a grace period for affected employers to come into compliance once the changes became effective.
The NYC FCA provides employment protections for “New Yorkers” and includes New York City and its five boroughs (Bronx, Brooklyn, Manhattan, Queens, and Staten Island). “Employer” includes an employer with four or more employees, which can include independent contractors who are not employers themselves. The NYC FCA protects those individuals who live and/or work in New York City and its boroughs (i.e., those who are subject to New York City’s laws). Not only does the law protect applicants and employees, it also includes interns, freelancers and independent contractors.
The goal of the NYC FCA is to prevent discrimination against applicants and employees who have criminal records by prohibiting employers from asking about criminal history or requesting certain screening services before a conditional offer of employment has been made. If records are found during the screening process, an employer must conduct an individualized assessment before taking adverse action. The individualized assessment, which can be completed using a sample FCA form provided by the CCHR, must demonstrate that there is a direct relationship between the alleged or convicted crime and the position or that employing the individual poses an unreasonable risk to people or property.
“Conditional offer of employment” is defined very specifically in New York City, meaning “an offer of employment, promotion or transfer which may only be revoked based on one of the following: 1. The results of a criminal background check [including motor vehicle record reports], … 2. The results of a medical exam, … or 3. Other information the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.” In practice, this means that if an employer wants to deny employment for another reason that is not listed above, including verifications, the employer must deny employment before a conditional offer is made.
The amendment to the NYC FCA also creates a bifurcated, or two-part, screening process. Employers cannot ask about or consider information about an applicant’s conviction history or pending cases until after the employer has assessed all other job qualifications and made a conditional offer of employment to the applicant. After the conditional offer, employers who wish to withdraw the conditional offer based on the applicant’s criminal history must comply with specific requirements of the Fair Chance Act Process and can only withdraw the offer in limited circumstances as listed above.
Extending a conditional offer before requesting any type of screening to avoid a bifurcated process is not recommended as the guidance specifically states this is not an option. Additionally, the NYC FCA lists requirements for the disclosure and authorization required under the Federal Fair Credit Reporting Act and related laws. Employers cannot mention “criminal background check” or “background check” in disclosures and authorization provided before a conditional offer is made. Instead, the CCHR encourages wording such as “consumer report” or “investigative consumer report.” While the disclosure and authorization can be updated to exclude this language, an employer could face compliance issues if the applicant or employee lives or works in a jurisdiction that requires specific language in these forms (e.g., City of Los Angeles, City and County of San Francisco). The most conservative approach is to provide two separate form sets for each part of the bifurcated screening process tailored for that specific part.
The guidance provides an option for employers to manage the two-part process on their end. For example, an employer can order a full report and segregate their review of the report’s components into two stages. However, this process can be risky. An employer who segregates its review on its own must guarantee that its staff does not review criminal, motor vehicle records, and medical exams at an inappropriate time. Additionally, if an employer follows the recommended conservative approach of providing two sets of disclosures and authorizations, it may be difficult to manage this process if only one screening report is ordered. Finally, an employer who uses this process bears the burden of proving that its review was properly segregated.
AccuSource can provide a compliant solution through a bifurcated screening process in TazCloud (also known as Instascreen). The process includes two packages for New York City applicants and employees. During the first part of the process, the employer selects the New York City Non-Criminal package, which includes screening components such as verifications, reference checks, and drug tests. If ordered using QuickApp or QuickApp Pro, the applicant receives an invitation email to complete a personal data questionnaire and provide authorization for screening, including a brief explanation of the bifurcated process. The disclosures and authorization provided during the questionnaire are tailored to comply with the NYC FCA requirements. Once the first non-criminal report is completed, the employer orders a new report, this time selecting the New York City Criminal/MVR/Medical Exam package. The applicant receives a second invitation email and completes the second personal data questionnaire and authorization. The disclosures and authorization are tailored under this package as well. As explained, AccuSource has created custom disclosure and authorization templates that update language in compliance with NYC FCA (i.e., remove references to “background,” “check,” and “criminal” except where permitted). While it may be uncommon for a New York City applicant to also have current residential or work ties to another jurisdiction, we also customized disclosure templates for jurisdictions with their own disclosure requirements where possible (e.g., California, New Jersey).
AccuSource wants to ensure clients are aware of the NYC FCA’s potential impacts on the screening process. Turnaround times could be extended due to the ordering and processing of two separate reports as well as any delays by the applicant in completing his or her personal data questionnaire for the second part of the bifurcated process. To further clarify, under our current process, AccuSource simultaneously works on both non-criminal and criminal products within one report. Under our proposed new process, these components are separated into two separate reports that are processed consecutively. This process is critical as it complies with the NYC FCA and also reduces the reporting of stale data. Because the process is more complex, it could lead to frustration for some applicants. However, AccuSource has created tailored email invitations that explain to each New York City applicant that the applicant will receive two separate invitation emails, complete two separate personal data questionnaires, and explain why this is the case. For clients who use integrations in their background screening process, AccuSource will work with each client to propose a solution for its integration.
We highly recommend that you review the NYC FCA and its amendment with counsel knowledgeable in background screening. Please also keep in mind that this blog post focuses on the bifurcated report requirement and does not address other recent changes made to the NYC FCA. Once you have reviewed and if you would like to move forward with our suggested bifurcated ordering process, please contact your account manager for package setup. If you would like AccuSource to provide a complimentary review of your current background screening compliance program, please contact us at email@example.com.
NYCCHR Legal Enforcement Guidance from July 15, 2021: https://www1.nyc.gov/assets/cchr/downloads/pdf/fca-guidance-july-15-2021.pdf
NYC Fair Chance Act (general website): https://www1.nyc.gov/site/cchr/media/fair-chance-act-campaign.page
Newest Version of Fair Chance Act Notice: https://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf
AccuSource Blog Posts:
AccuSource Webinar (New York City is discussed toward the end of the webinar): https://accusource-online.com/is-this-record-yours-identifier-redaction-and-its-impact-on-background-screening/