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BLOG / 11.01.21 /Matthew J. Smith

Amendments to NYS Fair Chance Act Grant Further Rights to Job Applicants and Employees with Prior Arrests or Convictions

New York State’s “Fair Chance Act” was amended effective July 29, 2021, further limiting the rights of employers to screen job applicants and employees based on criminal history and background checks.

The 2015 Fair Chance Act (the “FCA”), covering most employers with four or more employees, amended the NYC Human Rights Law by prohibiting employers from inquiring into a job applicant’s pending arrest or conviction record before making a conditional offer of employment to the applicant. Thereafter, the FCA required the employer to undertake a detailed interactive “Fair Chance Process” before withdrawing a conditional offer to an applicant.

The Fair Chance Process requires that the employer:

(a) provide the applicant with a written copy of the criminal history report;
(b) determine whether: (i) there is a direct relation between the criminal offense and the employment sought, and (ii) the employment position would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. In performing this review, the employer MUST perform an individualized assessment of each of eight factors (set forth below); and
(c) allow the applicant an opportunity to respond to the employer’s inquiry into criminal history and findings resulting therefrom

The Eight factors which an employer is required to consider and analyze under the Corrections Law are:

(1) The public policy of New York State, which encourages employment of people with criminal records;
(2) The specific duties and responsibilities related to the employment sought or held by the person;
(3) The bearing, if any, of the person’s convictions history on the applicant’s fitness or ability to perform one or more of the job’s duties or responsibilities;
(4) The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since the arrest or conviction;
(5) The age of the applicant when the events that led to the applicant’s conviction occurred, not the time since the arrest or conviction;
(6) The seriousness of the applicant’s conviction history;
(7) Any information produced by the applicant, or produced on the applicant’s behalf, regarding their rehabilitation or good conduct; and
(8) The legitimate interest of the employer in protecting property and the safety and welfare of the specific individuals or the general public.

The 2021 amendments to the FCA expand the protections of the FCA to both applicants and to existing employees. If an employer discovers that a current employee has been arrested or has a criminal record, the employer must engage in the Fair Chance Process before taking an adverse action. In addition: (i) the employer must now place an existing employee on unpaid leave for a reasonable amount of time when conducting the Fair Chance Process review; (ii) because independent contractors and freelancers are considered employees for certain purposes under the NYC Human Rights Law, the FCA (and Fair Chance Process) applies not only to job applicants and employees, but also to independent contractors and freelancers seeking work from the employer; and (iii) the amendments expand the types of criminal history/charges that employers may not ask about or base employment decisions on.

Employers should review the Legal Enforcement Guidance issued by the NYC Commission on Human Rights and coordinate their background checks with the bifurcated system of pre-conditional offer review and post-conditional offer background checks to adhere to the FCA regulations. [Hyperlinks in next paragraph.] Employers should review and update their policy manuals, background check disclosure/authorization forms and their language in job advertisements to ensure that they all comply with FCA requirements. Managers and human resource personnel should be educated about the FCA and adjust their procedures accordingly.

The NYC Commission on Human Rights Legal Enforcement Guidance can be found HERE as well as Frequently Asked Questions of NYC’s Employment Protections Based on Criminal History. A form notice and Fair Chance Process checklist is also available HERE.