In 2015, NYC Mayor Bill de Blasio signed the city’s first Fair Chance Act (FCA) into effect. On the day of its signing, de Blasio said:
“Today, we ‘ban the box’ in New York City. This bill opens the door to jobs for New Yorkers who have already paid their debt to society, rather than condemning them to a grim economic future.”
A few months after signing the law into effect, the New York City Commission on Human Rights (NYCCHR) released Enforcement Guidance regarding the FCA, and in early 2016, the Commission issued proposed regulations and held a public hearing regarding the regulations.
Now, more than a year later, the FCA has resurfaced after the NYCCHR published the final regulations, which took effect August 5, 2017. Per the Notice of Adoption of Rule, key points of the expanded provisions include the following:
- Amends title 47 of the Rules of the City of New York to establish definitions for “Applicant,” “Adverse Employment Action,” “Article 23-A Analysis,” “Article 23-A Factors,” “Business Day,” “Conditional Offer of Employment,” “Conviction History,” “Criminal Background Check,” “Criminal History,” “Direct Relationship,” “Domestic Partners,” “Fair Chance Process,” “Human Rights Law,” “Inquiry,” “Licensing Agency,” 2 “Non-Convictions,” “Per Se Violation,” “Statement,” “Temporary Help Firms,” and “Terms and Conditions.”
- Establishes per se violations, as defined by these rules, of the new provisions added to the Human Rights Law by the FCA.
- Clarifies the types of questions and statements relating to criminal history that are prohibited by the FCA.
- Explains the meaning of a conditional offer and establishes the limited circumstances under which an employer can revoke a conditional offer.
- Explains what an employer should do if they inadvertently learn about an applicant’s criminal history prior to making a conditional offer.
- Clarifies the procedure that an employer must follow upon learning of an applicant’s or employee’s criminal history and what steps must be taken before revoking a conditional offer or taking an adverse employment action.
- Establishes clear guidelines that employers must follow when considering whether and how applicants’ and employees’ criminal convictions relate to the duties of a prospective or current job or would pose an unreasonable risk to the property or the safety or welfare of specific individuals or the general public.
- Establishes what information an employer must provide to an applicant if a determination is made to revoke a conditional offer based on a conviction, and clarifies how an employer must evaluate an applicant’s request for more time.
- Requires an employer to consider any documentation that the applicant presents to support their assertion that the information on the background check contains an error.
- Clarifies exemptions to the FCA.
- Creates a discretionary mechanism for the Commission to respond to per se violations of the FCA by allowing the Commission’s Law Enforcement Bureau (“LEB”) to send employers or licensing agencies an Early Resolution Notice.
- Clarifies that employers may not request information or inquire about the non-convictions of applicants or employees and may not deny or take any adverse employment action against applicants or employees based on non-convictions.
- Updates the rule’s definition of “domestic partners” to reflect the definition contained in the Administrative Code.
Employers and staffing agencies in New York City should evaluate current recruiting and screening processes and consult legal counsel with questions.
For more information on the FCA’s impact on background screening and/or guidance for establishing compliant employment screening programs, contact AccuSource today or reach us by phone at 888-649-6272.
This information is not intended to be legal advice. It is recommended that you speak with your Legal Counsel to ensure compliance with applicable law.