Amendments to the NYC Fair Chance Act

Posted: July 29, 2021

Info Cubic continuously monitors important legislation pertaining to the background check industry. On July 15, 2021, the New York City Commission on Human Rights recently released updated amendments to the NYC Fair Chance Act, which applies to any employer with four or more employees that hires or employs workers in New York City. It was originally enacted in October 2015 and prohibited any inquiry into an applicant’s criminal history, including job postings and online applications stating that applicants will be subject to a background check, until after a conditional offer of employment has been made.

Starting July 28^th, 2021, amendments to the Act will made significant changes, including:

1. Non-criminal History Background Checks Must Be Reviewed Before Criminal History May Be Considered. Employers must now take a two-tiered approach to background screening, wherein: 1) all non-criminal pre-employment screenings, such as verification of employment and education credentials, must be completed and reviewed prior to a conditional offer of employment being made; after which 2) employers may (only after a conditional offer of employment), request and review the applicant’s criminal history, which may only be considered in compliance with the Act’s individualized assessment, notice and consideration requirements.
2. Two-Tiered Approach Could Impact FCRA Disclosure and Authorization Requirements. The Fair Check Act prohibits stating that there will be a criminal background check prior to a conditional offer, so there is some concern around how this prohibition will impact the FCRA’s requirement to provide disclosure and obtain authorization for a background check, which generally lists that criminal records will be requested. The Fair Chance Act guidance instructs employers to remove all mention of criminal records from the FCRA Authorization and disclosure when seeking an applicant’s authorization for a background check prior to a conditional offer. Employers are also encouraged to avoid the term “Background Check” as it can dissuade applicants with criminal histories from pursuing employment.
3. Employers Must Apply the FCA Factors When Considering Criminal History for Applicants and Current Employees. Two significant changes are the required application of the Fair Chance Act’s review, notice and consideration process. This applies both to an employer’s consideration of pending criminal arrests and charges of applicants, as well as to consideration of the criminal convictions of current employees. The NYC Fair Chance Factors to be applied when considering pending criminal charges of applicants or employees, or convictions of current employees, (a modified version of the N.Y. Correction Law Article 23-A factors), are as follows:
   
   1. The policy of New York City to overcome stigma toward and unnecessary exclusion from employment of persons with “criminal justice involvement”;
   2. The specific duties and responsibilities necessarily related to the employment held [or applied for] 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, which shall serve as a mitigating factor (emphasis added);
   5. The seriousness of the offense or offenses;
   6. The legitimate interest of the 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, regarding their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community.
   8. An employer can only deny employment based on an applicant’s or employee’s conviction history or pending case if, after conducting an analysis of the relevant factors, it 1) “determines there is a direct relationship between the applicant’s conviction history or pending case and the job”; or 2) shows that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
4. “Non-convictions” May Not Be Considered in the Hiring Process or During Employment. Info Cubic does not report Non-Convictions when the employer, applicant or record are located in the state of New York, so this update will not change current processing.

5. The Time to Respond to the Fair Chance Act Notice is Increased from 3 to 5 Business Days. Employers must now wait 5 business days after sending the Pre-Adverse Action Notice before sending the Final-Adverse Action notice, allowing the applicant more time to review and potentially dispute the items contained within their consumer report.

If you have questions regarding the NYC Fair Chance Act or other compliance-related issues, please feel free to give us a call at (877) 360-4636.