On January 10, 2021, Int. 1314-A (“Law”) was enacted, [1] and it goes into effect on July 28, 2021. The Law significantly expands job applicants’ protections under New York City’s Fair Chance Act (“FCA”), otherwise known as the “ban-the-box law.” [2] Among other things, the scope of FCA protections now includes pending arrests and other “criminal accusations” (not just criminal convictions), and prohibits inquiries into certain matters even after an employer makes a conditional job offer.
Existing Requirements
The FCA, which was enacted in 2015 and generally covers New York City employers with four or more employees, [3] prohibits most inquiries regarding an applicant’s criminal history until after the applicant receives a conditional offer of employment. The employer must analyze any criminal history using the eight-factor balancing test set forth in New York Correction Law Article 23-A (“Article 23-A Analysis”) and the impact on fitness for employment before a conditional offer of employment may be withdrawn.
If an employer decides to withdraw a conditional offer of employment because of the applicant’s criminal background following an Article 23-A Analysis, the FCA mandates that the employer follow the “Fair Chance Process,” to wit:
- Send the applicant a “Notice of Intent to Take Adverse Action.” With this notice, also include:
- a completed “Fair Chance Notice,” summarizing the factors analyzed and the reasons for the decision;
- a copy of the criminal background report;
- any other supporting documents that formed the basis for the intended adverse action;
- a copy of “Summary of Your Rights Under the Fair Credit Reporting Act”; and
- a copy of Article 23-A of the New York Correction Law.
- a completed “Fair Chance Notice,” summarizing the factors analyzed and the reasons for the decision;
- Hold the position open and allow the applicant at least three business days to respond.
If the applicant responds with relevant documents or information, the employer must consider whether those materials, under an Article 23-A Analysis, require reversal of its decision to rescind the job offer. If they do not, or if the applicants fails to provide a satisfactory response in a timely manner, the employer must send the applicant a “Notice of Adverse Action,” along with additional copies of:
- the criminal background report,
- any other supporting documents that formed the basis for the adverse action,
- the “Summary of Your Rights Under the Fair Credit Reporting Act,” and
- Article 23-A of the New York Correction Law.
How the Law Expands the FCA
The Law broadens the FCA in a number of ways, including the following:
- Expands the scope of “criminal history” to include pending arrests and other “criminal accusations.” The Fair Chance Process must be used to determine if a pending arrest or other “criminal accusation” may be the basis to rescind a conditional job offer. Such rescission may only occur if, after considering the relevant fair chance factors (discussed in next bullet), “the employer determines that either (i) there is a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
- Adds new factors to be considered in an individual assessment for pending arrests or criminal charges, or employee convictions that occur during employment. In these situations, employers will now have to consider the following factors, in lieu of the Article 23-A Analysis:
- The City’s policy “to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment”;
- the specific duties and responsibilities “necessarily related” to the job at issue;
- “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”;
- whether the employee or applicant was 25 years of age or younger at the time the criminal offense(s) for which the person was convicted occurred, “or that are alleged in the case of pending arrests or criminal accusations”;
- “the seriousness” of such offense(s);
- the employer’s “legitimate interest” in “protecting property, and the safety and welfare of specific individuals or the general public”; and
- “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 City’s policy “to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment”;
- Prohibits any inquiry at any time concerning specified criminal history matters. At no time may an employer take an adverse employment action against an applicant or employee based on that person’s (i) violations; [4] (ii) non-criminal offenses; (iii) non-pending arrests or criminal accusations; (iv) adjournments in contemplation of dismissal; [5] (v) youthful offender adjudications; or (vi) sealed offenses, if disclosure of such matters would violate the New York State Human Rights Law.
- Requires employers to solicit from applicants information related to the Fair Chance Process. Currently, the FCA only requires employers to solicit evidence of rehabilitation and good conduct.
- Expands the time applicants have to respond to the employer’s written assessment from three to five business days.
- Codifies guidance from the New York City Commission on Human Rights on when an employer may revoke a conditional offer of employment. Employers may only revoke the conditional offer based on (i) the findings of a criminal background check following an individual assessment conducted pursuant to the Fair Chance Process, (ii) the results of a medical examination, consistent with the Americans with Disabilities Act; or (iii) other information obtained by the employer after making the conditional offer, if the employer could not be reasonably expected to have that information prior to making the offer and the employer would not have made the offer if it had possessed such information.
- Requires production of evidence to the applicant or employee where the employer takes adverse action pursuant to an alleged misrepresentation by the applicant/employee. Under the existing FCA, an employer may take adverse action against applicants who intentionally misrepresent information to the employer. The Law will continue to allow an employer to take such action, but will require that it provide the employee or applicant with the documents or other materials that support the employer’s claim of misrepresentation and permit the individual a “reasonable” amount of time to respond prior to taking the adverse action.
Notably, the Law makes clear that an employer may place an employee on an unpaid leave for “a reasonable time” while it conducts the Fair Chance Process without such action being considered an adverse employment action.
What New York City Employers Should Do Now
- Revise criminal background check policies and processes to ensure compliance with the new Law.
- Train human resources personnel, as well as supervisors and managers, on any changes made to current policies and practices pursuant to the Law, including topics such as permissible interview questions and what information may or may not be included in job postings.
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For more information about this Advisory, please contact:
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Susan Gross Sholinsky |
Nancy Gunzenhauser Popper |
Amanda M. Gómez |
ENDNOTES
[1] The Law was enacted due to Mayor Bill De Blasio’s failure to sign or veto the Law within 30 days of its passage by the New York City Counsel.
[2] For more information on the Fair Chance Act, please see the Epstein Becker Green Act Now Advisory titled “Now That New York City’s Credit Check and “Ban the Box” Laws Are in Effect, How Do Employers Comply?”
[3] Except for claims of sexual harassment, which cover all employers, the following individuals must be counted when determining if an employer meets the four-employee threshold: (i) individuals working as freelancers and independent contractors (as well as interns), and (ii) the employer’s parent, spouse, domestic partner, or child, if employed by the employer (though these relatives are not afforded protections under the FCA or other aspects of the New York City Human Rights Law). Employers should also be aware that, while it remains unclear, independent contractors and freelancers may be entitled to the protections afforded by the FCA.
[4] A “violation” is defined as an offense, other than a “traffic infraction,” for which a sentence to a term of imprisonment in excess of 15 days cannot be imposed.
[5] The New York State Human Rights Law previously was amended to prohibit requesting information about adjournments in contemplation of dismissal.
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