NYC Commission on Human Rights Publishes “Fair Chance Act Notice”

Posted: October 27, 2015

The New York City Commission on Human Rights (NYCCHR) recently published a “Fair Chance Act Notice” to help employers comply with the Fair Chance Act’s adverse action requirements. As discussed previously on the Compliance Corner, the Fair Chance Act prohibits employers from inquiring into any pending arrest information or criminal conviction records until after a conditional offer of employment is extended. Employers are also barred from conducting a search of publicly available records or obtaining a criminal background check until the conditional offer stage. Thus, the law itself does not prohibit employers from conducting criminal background checks, but regulates the timing. The Fair Chance Act also impacts the adverse action process which is the where the newly published Notice comes into play. If an employer is considering taking adverse action based on the individual’s arrest or conviction record, they must provide a written copy of the inquiry to the applicant, perform an analysis as outlined by Article 23-A and provide a copy of that analysis to the applicant. Once those steps are completed, the employer must hold the position open and wait at least three business days to allow the applicant time to respond. The Fair Chance Act Notice may be used by employers to meet the law’s requirements. Employers may also make modifications to the form, provided that “the material substance does not change.” (Note: employers that conduct background checks through a Consumer Reporting Agency must also ensure compliance with the Fair Credit Reporting Act’s adverse action requirements.) The NYCCHR also noted that it will be issuing interpretive legal guidance followed by a formal rulemaking process in the near future. Impacted employers should take compliance with the Fair Chance Act and the Stop Credit Discrimination in Employment Actseriously as the NYCCHR has clearly stated it plans to “vigorously” enforce this new legislation.