United States: ICYMI: New York City Amended Its Fair Chance Act, And The Changes Are Significant

This past July 29, while employers were grappling with complicated COVID-related questions such as when to reopen offices and whether to impose employee vaccine mandates, an amendment to the New York City Fair Chance Act (NYFCA) became effective and significantly extended the Act's protections for employees and applicants with criminal histories. The New York City Commission on Human Rights also issued specific guidance on the NYFCA and these amendments in the summer.

We first reported on the NYFCA when it became effective in October 2015. As initially enacted, the NYFCA prohibited employers from making pre-offer inquiries into a job candidate's criminal history. It also restricted the employer's post-offer discretion when the prospective employee ultimately was found to have a prior criminal conviction. Specifically, under the original NYFCA, an employer could not rescind an offer based on a prior conviction without undertaking a "Fair Chance Process," which entailed:

• Delivering to the candidate a copy of Article 23-A of the New York Corrections Law  (which sets forth eight factors an employer must consider to decide whether an applicant's criminal conviction bars employment);
• Conducting a "Fair Chance Analysis" by considering the impact of the candidate's criminal conviction in light of the factors set forth in Article 23-A of the New York Corrections Law;
• Sharing the employer's Fair Chance Analysis;
• Providing the applicant their background check report or inquiry; and
• Keeping the job offer open for at least three days so that the applicant has an opportunity to respond to the employer.

The amendments to the NYFCA affect numerous aspects of the law. Here are some of the most material revisions:

The first, and perhaps biggest, change to the NYFCA is that its protections now extend not only to job applicants but also to current employees and independent contractors. If such individuals have a pending criminal case or a post-employment conviction, under the amended NYFCA no adverse employment action may be taken unless the employer engages in the Fair Chance Process (as amended) and a new version of the Fair Chance Analysis. The analysis used for employees and independent contractors is slightly different than the analysis required for job applicants. It incorporates a review of seven factors (the "NYC Fair Chance Factors") set forth in the NYC Commission on Human Rights Legal Enforcement Guidance on the NYFCA instead of the eight factors set forth in Article 23-A of the New York Corrections Law. Similarly, pending criminal cases against applicants also are analyzed using the NYC Fair Chance Factors. The chart below illustrates the factors to be used, depending on the situation being analyzed.

The second significant change to the NYFCA is a modification to the Fair Chance Process, which now requires:

• Soliciting information from the candidate or employee regarding the at-issue conviction or pending criminal case to be used for the Fair Chance Analysis (based either on the NYC Fair Chance Factors or those found in Article 23-A of the New York Corrections Law). Employers can use the Fair Chance Act Notice to solicit such information;
• Giving the applicant or employee their background check report or inquiry;
• Providing the applicant or employee a written copy of their Fair Chance Analysis; and
• Allowing the candidate or employee at least five business days to respond to the Fair Chance Analysis. (It is permissible under the amended NYFCA for an employer to place the employee on unpaid leave for a reasonable time to compete the Fair Chance Process.)

Another major revision to the NYFCA relates to the process of vetting candidates for an open position. Under the original NYFCA, the only restrictions placed on an employer's review and consideration of a candidate's background check report were the requirements of the Fair Chance Process. Under the amended NYFCA, however, an employer must now separate its review of such a report into two distinct phases: (1) Before making an offer, the employer may review only non-criminal background information on the applicant (employers must also refrain from reviewing driving records for the candidate because these records often contain references to criminal history); (2) after reviewing that information and making a conditional offer, the employer can then review the applicant's criminal history and driving record and, if needed, engage in the Fair Chance Process (as amended).

Finally, the amended NYFCA and the New York City Commission on Human Rights' NYFCA guidance makes clear that all private employers and most public-sector employers are prohibited from seeking any information about or taking adverse employment or other action based on a person's non-conviction history such as arrests that did not result in prosecution, cases in which all charges were dismissed, youthful offenses, and convictions that have been sealed.

Given these and the other changes to the NYFCA, New York employers are well advised to review the New York City Commission on Human Rights' NYFCA guidance and contact experienced employment counsel to determine what changes may need to be made to employee handbooks, other corporate policies, and requests for information made to consumer reporting agencies in connection with background and criminal history checks.

Further, New York City is not alone in limiting employers' ability to inquire about criminal histories or take adverse employment action based on convictions. Numerous states (including California, New Jersey, Virginia, and Wisconsin) and scores of cities across the nation have adopted similar legislation. It is only prudent, therefore, regardless of what jurisdiction employers are in, to remain informed of EEOC guidance on these issues and to stay up-to-date on legal developments in their home jurisdictions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.