On October 27, 2015, the New York City Fair Chance Act went into effect. The law makes it illegal for employers to ask applicants about a criminal record before making a job offer. The Act bans reference to criminal histories or background checks in employment ads, job applications, and during interviews. Only once the employer has made a conditional offer of employment is the employer allowed to inquire into an applicant’s criminal record and determine whether there are grounds to revoke the offer consistent with New York Correction Law Article 23–A (“Article 23–A”). The Fair Chance Act applies to all employment decisions—including hiring, firing, and promoting individuals with criminal histories. This article focuses on the hiring of applicants with criminal records and outlines what employers must do to comply with the new law when they offer a position to someone they discover has a criminal record.
How Do I Comply with the Fair Chance Act?
Prior to Making a Conditional Offer
The first step is to eliminate any reference to criminal histories or background checks in an employer’s employment ads, job applications, and interview practices. Advertisements with phrases such as “no felonies,” “must pass background check,” or “must have clean record” are illegal. As for print and online job applications, employers must rid them of any language inquiring into an applicant’s criminal history or asking an applicant to authorize a background check. This practice is the same during the interview, where the interviewer is prohibited from asking about an applicant’s criminal history.
If during the interview, an employer or hiring manager accidentally discovers the applicant has a criminal record, the interviewer should give the applicant a basic overview of the NYC Fair Chance Act. Explain that employers are only allowed to consider the applicant’s criminal record after making a conditional offer and that it would be inappropriate to discuss the record until that point, if at all. Interviewers may want to make a note in the applicant’s file should disclosure later become an issue.
After Making a Conditional Offer
Only after an employer extends a conditional offer of employment may it ask the applicant, either in writing or orally, whether he/she has a criminal history or pending criminal case. The New York City Commission of Human Rights recommends employers style their written inquiry as follows:
Have you ever been convicted of a misdemeanor or felony? (Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.)
If an employer runs a background check to determine or confirm the applicant’s criminal history, it is legally obligated to give the applicant the exact information used to inquire into his/her background. For example, if the employer hired a third party to conduct the check, it must turn over a copy of its report; if it found the information online, it should print a copy of the page; if it accessed the information by public record, it must print that page; or if it relied on the applicant’s oral testimony about the record, best practice would be to present a written summary of that information back to the applicant.
Once the employer has the applicant’s criminal record, if it decides the information discovered in the applicant’s criminal history is irrelevant and makes a final offer of employment without regard to the criminal history, and the employer complied with the above requirements, no other steps are required to be in compliance with the law.
Revoking a Conditional Offer
An employer that is unsure whether to hire the applicant based in any part on the information you discovered in this criminal history must carefully and deliberately evaluate whether that criminal record outweighs the reasons the applicant was selected for the position.
For forty years, New York State Article 23–A, has prohibited employers from denying applicants work based solely on a criminal record, and has governed how employers make this determination. Article 23–A requires employers evaluate job seekers and current employees with conviction histories fairly and on a case-by-case basis. It lists eight factors employers must use to determine whether there is a direct relationship between the criminal record and the prospective position or whether, based on the conviction, the employer can show the applicant poses an unreasonable risk to the company’s safety:
- 1. New York State’s public policy of encouraging the employment of persons with prior convictions;
- 2. The specific duties and responsibilities necessarily related to the . . . employment sought;
- 3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his ability to perform one or more such duties or responsibilities;
- 4. The time which has elapsed since the occurrence of the criminal offense or offenses;
- 5. The age of the person at the time of the occurrence of the criminal offense or offenses;
- 6. The seriousness of the offense or offenses;
- 7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and
- 8. The legitimate interest of the . . . private employer in protecting property, and the safety and welfare of specific individuals or the general public.
If after weighing these factors, an employer still wishes to hire the applicant, again, there is nothing more to do.
If, on the other hand, the employer decides to revoke the offer based on the applicant’s criminal history, it must: (1) explain to the applicant why, using the City’s Fair Chance Notice; (2) provide the applicant with a copy of the background check or criminal history information you obtained; (3) and give the applicant three business days to respond to the notice. The Fair Chance Notice acts as the employer’s application of Article 23–A to the applicant’s criminal history; it gives the applicant the employer’s reasoning for wanting to rescind the offer. The applicant has three days to respond to the Notice and should include information about errors in his/her record and any additional information the employer should consider before making the final determination to retract the offer.
The New York City Commission offers free trainings on the Fair Chance Act. Given how dramatically this law changes former employment practices in hiring people with criminal histories, it is important all employers and employees are aware of all its requirements to avoid unlawful discrimination against job seekers with criminal histories. If you are unsure how to apply the new law in your business, or if you feel you have been a victim of unlawful discrimination in the hiring process, our attorneys can help. Contact us today.
Erin Lloyd, Esq. is an employment and business lawyer and partner at Lloyd Patel LLP, a general practice law firm. She can be reached directly at firstname.lastname@example.org.
Whitney McCann is a second year law student at City University of New York School of Law, interning at Lloyd Patel LLP, and expects to graduate in May 2017.