New York City Council Expands Fair Chance Act

The New York City Council has amended the Fair Chance Act (FCA) to expand employment protections for job applicants and employees with criminal conviction histories. The amendments became law on January 10, 2021, (upon being returned to the Council unsigned by Mayor Bill de Blasio) and take effect on July 29, 2021.

General Overview 

As detailed in our prior advisory, the FCA prohibited most New York City employers from making inquiries into an applicant's criminal conviction history until after extending to the applicant a conditional offer of employment.

In addition, the FCA made it an unlawful discriminatory practice to deny employment or take adverse action against an employee because the individual has a prior conviction history, unless the employer undergoes an individualized analysis to determine that the employee's criminal conviction history bears a direct relationship to the position in question. The FCA also prohibited any reference to a criminal background check in any public statement advertising the position.

Under the FCA, an applicant's criminal history, standing alone, is not sufficient grounds to deny an employment opportunity to that applicant. Accordingly, an employer may rescind an offer of employment only after disclosing to the applicant its analysis of the eight factors enumerated in Article 23-A of the New York State Correction Law¹ (which governs the considerations all employers in New York must examine when evaluating the results of criminal background checks) as part of a "Fair Chance Process."

Under this Fair Chance Process, an employer may withdraw a conditional offer of employment upon a determination that:

• (A) There is a direct relationship between the applicant's conviction history and the prospective job; or
• (B) Employing the applicant "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Both exceptions require individualized assessments of the Article 23-A factors. Beyond those eight factors, an applicant's certificate of relief from disabilities or a certificate of good conduct creates a presumption of rehabilitation regarding the relevant conviction.² Employers must evaluate all relevant evidence and all factors—none are dispositive.

Should an employer decide to withdraw an individual's offer of employment after an evaluation of all relevant factors, the Fair Chance Process requires the employer to: 

• Disclose the results of its criminal background check;
• Provide its analysis of the factors set forth in Article 23-A;
• Give the applicant a reasonable period of time to respond; and
• Consider any additional information that the applicant may provide.

If, after engaging in this process, the employer remains of the opinion that the applicant's criminal conviction history disqualifies them from the job, it must relay that decision to the applicant.

FCA Amendments

The City's amendments to the FCA expand the law's protections in numerous ways, most notably in its application to pending arrests and criminal accusations and criminal convictions during employment and modification of the Fair Chance Process, including by introducing additional factors to consider for these forms of protection.

Amendments Relevant to Applicants 

"Conditional Offer of Employment" Defined: The amendments now expressly define a "conditional offer of employment" to mean an offer of employment, promotion or transfer which may only be revoked based on one of the following:

• (1) The results of a criminal background check, conducted in accordance with the law;
• (2) The results of a medical exam as permitted by the Americans with Disabilities Act; or
• (3) Other disqualifying information the employer could not have reasonably known before making the conditional offer, regardless of the results of the criminal background check.

This definition generally tracks the New York City Commission on Human Rights' (Commission) prior Legal Enforcement Guidance on this point.³ 

Post-Conditional Offer Inquiries and Fair Chance Process: After extending a conditional offer of employment, an employer may inquire about the applicant's arrests or conviction record. Before taking any adverse employment action based on the inquiry, the employer must now request information from the applicant and provide five business days to respond.

Thus, the employer must comply with the following modified Fair Chance Process:

• (1) Provide a written copy of the inquiry to the applicant (in a manner to be determined by the Commission);
• (2) Request from the applicant information relating to the relevant fair chance factors (discussed below);
• (3) Perform an analysis, considering Article 23-A factors for prior arrests and the City's relevant fair chance factors for pending arrests and criminal accusations.
• (4) Provide a written copy of such analysis to the applicant in a manner to be determined by the Commission, which shall include but not be limited to supporting documents that formed the basis for an adverse action based on such analysis and the employer's reasons for taking any adverse action against such applicant; and
• (5) Allow the applicant reasonable time to respond, at least five business days, during which time the position must be held open for the applicant.

Amendments Relevant to Current Employees

Pursuant to the amendments, covered employers may not take an adverse action against a current employee because that individual has been convicted of one or more criminal offenses during their employment, unless the employer considers the City's "relevant fair chance factors" and determines that either:

• There is a direct relationship between the criminal conviction and the employment held by the person; or
• The continuation of the employment would involve an unreasonable risk to property, or to the safety or welfare of specific individuals or the general public.

The amendments set forth seven "relevant fair chance factors," which are similar to the Article 23-A factors, to be considered when engaging in the newly mandated analyses for convictions during employment:

• (1) New York City's policy to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
• (2) The specific duties and responsibilities necessarily related to the employment held by the person;
• (3) The bearing, if any, of the criminal offense(s) 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(s) for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations;
• (5) The seriousness of such offense(s);
• (6) The legitimate interest of the public agency or private 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, in regards to their rehabilitation or good conduct, including a history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

Adverse Action and Fair Chance Process: Before taking any adverse employment action against a current employee based on a criminal conviction, the employer must follow a newly enumerated Fair Chance Process:

• (1) Request from the employee information relating to the relevant fair chance factors;
• (2) Perform an analysis considering the City's relevant fair chance factors;
• (3) Provide a written copy of such analysis to the employee (in a manner to be determined by the Commission), which shall include but not be limited to supporting documents that formed the basis for an adverse action based on such analysis and the employer's reasons for taking any adverse action against such employee; and
• (4) After giving the employee the inquiry and analysis in writing, allow the employee reasonable time to respond before taking an adverse action.

Unlike with applicants, the City's newly established Fair Chance Process for current employees does not define a "reasonable time to respond." Prior to the amendments, the reasonable time for prior convictions was three days. Pending further guidance from the Commission, employers may consider providing the five business days now afforded to applicants under the amendments.

Unpaid Leave While Engaging in Analysis: Notably, the amendments provide that an employer may place a current employee on unpaid leave for a reasonable time while considering the fair chance factors and engaging in the Fair Chance Process.

Amendments Relevant to Applicants and Current Employees

Pending Arrests and Criminal Accusation: Once the amendments go into effect, it will also be an unlawful discriminatory practice for a covered employer to take an adverse action against an applicant or employee based on a pending arrest or criminal accusation unless the employer considers the City's "relevant fair chance factors" and determines that either:

• 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
• 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.⁴

Intentional Misrepresentations: The amendments also expressly provide that an employer may take adverse action against an applicant or employee found to have made intentional misrepresentations about their arrest or conviction history.⁵ Employers must provide the applicant or employee with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and give the person a reasonable, albeit presently undefined, amount of time to respond.

Prohibited Inquiries and Denial of Employment: The amendments prohibit employers from making any inquiry, in writing or otherwise, or denying employment to any person or taking adverse action against any employee, based on:

• Non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or sealed offenses; or
• A conviction for a "violation" of the New York Penal Code, i.e., an offense, other than a traffic infraction, for which no more than 15 days imprisonment can be imposed, or a conviction for a non-criminal offense, as defined by a law of another state.⁶

Next Steps for Employers

Covered employers should work with counsel to revise their employment practices prior to the amendments' effective date.⁷ Employers should also work with their third-party background check services to ensure compliance with the law.

It is anticipated that the New York City Commission on Human Rights will update its Legal Enforcement Guidance as well, including by updating its form of notice.

FOOTNOTES

1  Under Section 75 of Article 23-A of the Correction Law of New York, those eight factors are: (i) New York's public policy encouraging the licensure and employment of persons previously convicted of a criminal offense; (ii) the specific duties and responsibilities necessarily related to the employment sought or held by the person; (iii) the bearing, if any, the criminal offense will have on the applicant's fitness or ability to perform the duties of the job in question; (iv) the time which has elapsed since the occurrence of the criminal offense; (v) the age of the person at the time of occurrence of the criminal offense; (vi) the seriousness of the offense; (vii) any information produced by the applicant concerning the applicant's rehabilitation and good conduct; and (viii) the legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
2  What's more, employers cannot disfavor an applicant because they do not possess such a certificate.
3  To date, the Commission's Guidance does not reflect the recently enacted amendments.
4  An action that has been adjourned in contemplation of dismissal is not a "pending" action unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution.
5  Failure to disclose information that a person is not required to disclose (including, for example, convictions for petty offenses or juvenile delinquency findings) is not an intentional misrepresentation.
6  Employers are also prohibited from inquiring about, denying employment to, or taking adverse action based on an arrest or criminal accusation that was followed by a conviction for a violation or non-criminal offense.
7   Employers should be mindful that the NYCHRL was previously amended, effective January 11, 2020, to explicitly protect independent contractors and freelancers. Businesses engaging contractors should thus work with counsel to revise their policies and practices in light of the FCA amendments.