Amendments to New York City Fair Chance Act

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The New York City Council recently passed Int.1314-A which expands the city’s Fair Chance Act (FCA). The amendments, which take effect on or about July 28, 2021, impose numerous new requirements onto employers including during the employment relationship.

The Existing Fair Chance Act Requirements

The Fair Chance Act (FCA) prohibits employers from inquiring about or considering the criminal history of job applicants until after extending conditional offers of employment.[1] Employers also cannot take into account any inadvertently disclosed or discovered criminal history information until an offer is extended.
If an employer is considering taking adverse action based on an individual’s criminal history, the employer must conduct an analysis in compliance with New York Correction Law Article 23-A. During that analysis, employers must analyze eight (8) specific factors when considering an applicant’s criminal history conviction.

If the applicant’s criminal history poses a direct relationship or unreasonable risk, the employer must then conduct the NYC Fair Chance Process. Under the Fair Chance Process, employers must:
  1. Provide the applicant a copy of the report, written copy of the Article 23-A analysis and Fair Chance Act Notice;
  2. Provide the applicant a reasonable time period—from receipt of the inquiry and analysis—to respond to concerns (during which time another person cannot be permanently placed in the position); and
  3. Consider additional information provided by the applicant including whether that changes its Article 23-A analysis.
If a final decision is made, the employer must notify the individual in writing. For further details about the existing FCA requirements, review Asurint’s Ban the Box Guide.

New Requirements

The amendments extend the Fair Chance Process to pending criminal charges or arrests and to current employee criminal history (for example, when reviewing such information in relation to a promotion or deciding whether to terminate employment).
While employers must consider the Article 23-A factors for arrests and convictions preceding employment, there are now seven (7) ‘fair chance factors’ that employers must consider before making an adverse decision based on pending arrests or criminal accusations at the time of application or during employment, or for convictions that occur during employment. Those factors are:
  1. the policy of New York City to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment
  2. the specific duties and responsibilities necessarily related to the employment held by the person
  3. the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities
  4. whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations
  5. the seriousness of such offense or offenses;
  6. the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public; and
  7. any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct

The amendments make it an “unlawful discriminatory practice” for an employer to take adverse action based on a pending arrest or criminal accusation,[2] the employee’s criminal conviction or by finding the person “lacks good moral character” unless the employer considers the seven (7) factors and determines that there is (i) a direct relationship between the information and the employment sought or held; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.

Before taking an adverse employment action, the employer must follow the Fair Chance Process which includes the below modifications[3]:

  • Request information from the employee regarding the relevant fair chance factors;
  • Perform the required analysis and provide a written copy of that analysis; and
  • Provide a reasonable time period—from receipt of the inquiry and analysis—to respond and provide any additional information for consideration.
    • Note: Under the existing FCA, the “reasonable time period” was at least three business days. The amendments extend this time period to five business days for job applicants. The “reasonable time period” is not defined for current employees.
Employers are also prohibited from inquiring into (or considering) specific information such as non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, sealed convictions, a conviction of a violation[4] under New York Penal Law Section 10.00, or a conviction of a “non-criminal offense, as defined by a law of another state”.
The amendments allow employers to:
  1. Place an employee on unpaid leave for a reasonable time while the employer conducts the required evaluation.
  2. Take adverse action against an applicant or employee who is found to have made intentional misrepresentations regarding their arrest or conviction history provided that such adverse action is not based on a failure to divulge information that a person may not be required to divulge. The employer must provide the applicant or employee with a copy of the document(s) that formed the basis of the determination and give the person a reasonable time to respond.

Employer Take Away

Impacted employers should review their criminal history policies and procedures in light of the expanded scope of an already complex law. Asurint recommends engaging qualified legal counsel to assist with this review.
The New York City Commission on Human Rights provides more educational information on their website, including a page with information specifically for employers.
[1] The amendments define a “conditional offer of employment” to be 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, 2. The results of a medical exam as permitted by the Americans with Disabilities Act of 1990 or 3. Other information the employer could not have reasonably known before making the conditional offer if the employer can demonstrate it would not have extended the offer regardless of the criminal background check results. 
[2] As defined in the amendments, an action that has been adjourned in contemplation of dismissal is not considered a pending action unless the status is revoked and the case is restored for further prosecution.
[3] Previously the Fair Chance Process was only required for the arrest or conviction records of job applicants. The amendments now require a Fair Chance Process for current employee criminal convictions, and for pending arrests or criminal accusations. For current employee convictions, and for pending arrests or criminal accusations, it appears employers do not need to provide a written copy of the inquiry itself (which has been interpreted to mean the background report results). The analysis that must be conducted will likely vary based on the different factors that must be considered for current employee criminal convictions, and for pending arrests or criminal accusations, versus the arrest or conviction records of job applicants.
[4] “Violation” means an offense, other than a “traffic infraction,” for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.