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NYC Votes To Further Prohibit Consideration Of Criminal History In Employment Settings


Further restrictions on New York City employers’ ability to take adverse action against applicants or employees based on their criminal history are on the horizon. The New York City Council just passed a bill which will significantly expand the scope of the New York City Fair Chance Act (FCA). If enacted, the bill would impose restrictions on an employer’s ability to take any adverse action against an applicant or current employee based on pending criminal charges or arrests — currently not covered by the FCA — and will also extend the FCA to cover current employees convicted of a crime while employed. After passing the council on December 10, the legislation now goes to Mayor DeBlasio, who signed the FCA into law in 2015. Mayor DeBlasio has 30 days to sign, veto, or take no action on the legislation. Given his prior support for legislation in this area and other workers’ rights laws, the mayor is not expected to veto the bill. Accordingly, NYC employers should be prepared for changes to the Fair Chance Act.

What Do the Amendments Entail?

Before reviewing the amendments to the law, it is necessary to understand what is currently required under the FCA. 

The Existing FCA Requirements

The FCA codifies the process employers must use in New York City when considering a job applicant’s criminal history and added to the preexisting requirements under the New York State Human Rights Law and New York Correction Law Article 23-A. Under state law, an employer may not refuse to hire an individual by reason of their prior criminal convictions unless it is shown that there is a direct relationship between the criminal offenses and the employment sought, or there would be an unreasonable risk to property or the safety and welfare of specific individuals or the general public. 

A prospective employer must take into account several factors when considering an applicant’s criminal history: (a) the public policy of New York to encourage the employment of persons previously convicted of one or more criminal offenses; (b) the specific duties and responsibilities necessarily related to the employment sought or held by the person; (c) the bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities; (d) the time which has elapsed since the occurrence of the criminal offense or offenses; (f) the seriousness of the offense or offenses; (g) any information produced by the person, produced on his behalf, in regard to his rehabilitation and good conduct; (h) the legitimate interest of the public agency or private employer in protected property, and the safety and welfare of specific individuals or the general public; and (i) any certificate of relief from disabilities or a certificate of good conduct issued to the applicant (the “Article 23-A Factors”).

The FCA incorporated existing state requirements into City law, and also prohibited employers from inquiring about an applicant’s criminal conviction history until after the employer has extended a conditional offer of employment to the applicant. Additionally, the FCA codified the process employers must follow should they wish to rescind a conditional offer of employment based on an applicant’s conviction history. 

Before rescinding the conditional offer of employment, the employer must: (1) provide the applicant with a written copy of the criminal background check; (2) analyze the applicant’s criminal history using the Article 23-A Factors; (3) provide the applicant with a written copy of the analysis of the Article 23-A Factors; and (4) allow the applicant at least three business days to respond, during which time the employer holds the position open for the applicant (collectively steps one through four are referred to herein as the “Fair Chance Process”). As of January 11, 2020, the FCA applies to independent contractors as well as employees, due to an expansion of the New York City Human Rights Law to cover independent contractors

The Amendments To The FCA

The amendments expand the scope of the FCA is several ways.

What Should NYC Employers Do Now?

Mayor DeBlasio has until January 9, 2021 to act on the legislation. If the law is enacted, the amendments take effect 200 hundred days after enactment. You should continue to monitor developments as to the enactment and effective date.

Given the likelihood of the FCA amendments becoming law, you should start preparing to comply with the likely new reality when it comes to criminal background checks. You should review your background check policies and processes to understand what changes you will need to implement if and when the law is enacted. 

We will continue to monitor developments impacting New York employers, so make sure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney, or any attorney in our New York City office.

This Legal Alert provides an overview of a specific city law. It is not intended to be, and should not be construed as, legal advice for any particular fact situa


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