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14SeeFliegel and Chan, The Dust Hasnt Settled Yet, supra. In such instances, the employer has to provide the individual with a copy of the document(s) that formed the basis for the determination that an intentional misrepresentation was made and give the person a reasonable time to respond. The Guidance clarifies that neutral statements, however, such as ones that advise that criminal history will be considered consistent with the requirements of the New York City Fair Chance Act, are not permitted. Train all personnel involved in the hiring process for New York City, including recruiters, managers, supervisors and human resources personnel on the requirements of the amended FCA. Previous Flipbook. The Guidance defines that a misrepresentation is intentional if it is made with knowledge of its falsity and with intent or purpose to deceive the employer. When analyzing arrests or convictions that took place prior to the employment (i.e., that are not pending at the time of the employment), an employer is directed to use the factors in Section 753 of the N.Y. as required by Article 23-A of the New York State Correction Law, . Littler Investigation Toolkit for Employers, Littler Inclusion, Equity and Diversity Playbook, Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination, https://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf, Hiring, Performance Management and Termination, New York City Expands Scope of its Ban-the-Box Law, The Dust Hasnt Settled Yet: Employers Must Continue to Be Thoughtful About Criminal Record Screening Policies, Illinois Imposes New Criminal History Check Requirements on Employers, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions. 1314-A became law on January 10, 2021. The Guidance addresses this issue and instructs employers to omit any mention of a criminal background check when seeking an applicants authorization for a background check prior to a conditional offer. While employers are not obligated to use the fair chance notice published by the NYCCHR, doing so is the simplest way to ensure compliance with all updated requirements. 6The individualized assessment Requirements of New York Correction Law, Article 23-A have long applied to current employees. The purpose of Prop. For details, see our articles, New York City Enacts Ban-the-Box Legislation and New York City Human Rights Commission Fair Chance Act Fact Sheet Offers Compliance Guidance. Confer with their CRAs about whether background check reports can be bifurcated between non-criminal and criminal information, and how a two-tiered review process can be implemented. Focused on labor and employment law since 1958, Jackson Lewis P.C. Train and advise all management and human resources personnel responsible for hiring, firing, and/or employee discipline on the FCAs principles and processes and the resultant changes to your internal procedures. Rod M. Fliegel and Alison S. Hightower,High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions,Littler Insight (Oct. 19, 2017). When analyzing arrests or criminal charges that are pending at the time of the application for employment (or promotion or transfer), the amendments create a new list of factors, such as: (a) the policy of the city, as expressed in this chapter, to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment; (b) the specific duties and responsibilities necessarily related to the employment held by the person; (c) 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 employees fitness or ability to perform one or more such duties or responsibilities; (d) whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations; (e) the seriousness of such offense or offenses; (f) 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. Based on the . It generally prohibits employers from making inquiries about an applicants criminal conviction record until after a conditional offer of employment. This documented analysis must be provided to the applicant in a manner to be determined by the [C]ommission before an employer takes adverse action against the applicant. In this situation, the employer may advise the applicant once they apply for a position that a background check will be required. Copyright The Guidance provides a non-exhaustive list of types of criminal records that qualify as non-convictions and that are accordingly off limits. See Guidance at 10-11. Note that in connection with performing a credit check, an employer must identify the exemption under which the credit check is permissible, and must comply with the other requirements under the SCDEA. 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, which shall serve as a mitigating factor. [6]Article 23-A of the New York State Correction Law prohibits employers from unfairly discriminating against persons convicted of one or more criminal offenses and requires employers to evaluate qualified job seekers and current employees with conviction histories fairly and on a case-by-case basis. If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: New York On November 8, 2016, Arizona voters will decide on the Minimum Wage and Paid Time Off Initiative, known as Proposition 206. Updates to NYC Fair Chance Act Expand Protections for Applicants The Guidance contains multiple noteworthy and important points. asking an applicant* questions about his or her criminal record; searching public records on an applicants* criminal record; having an applicant* complete background check disclosure and authorization forms; or. NYC Fair Chance Act: Legal Enforcement Guidance For 2021 Amendments. However, the employer must provide the job applicant of copies of any information the employer relied upon and the legal citation for the exclusion. Prior results do not guarantee a similar outcome. However, the Commission may permit people-first language, such as People with criminal histories are encouraged to apply and other examples. )require employers using a third-party consumer reporting agency to procure a background check on an individual to provide the individual with a disclosure and authorization form, and to obtain written authorization for the background check prior to its initiation. PDF NYC FAIR CHANCE ACT NOTICE FORM(41469049v1) All rights reserved. In addition, the amendments expand the reasonable time to respond for an individual to respond to the notice from three business days to five business days. This is particularly important for evaluating the eligibility of current employees, as it suggests that the individuals performance history must be accounted for before an adverse employment action is made against them. conducting a background check on an applicant*. While many employers have already adopted this conservative reading of the law, the amendments make this more clear. The Guidance encourages employers to consider opting not to conduct criminal background checks on job applicants and employees, unless required by law.. Fair Chance Evaluation Form ______________________________________________ Applicant Name After extending a conditional offer of employment, we checked your criminal record. New York City Amends Fair Chance Act, Further Limits Employers - Mintz Additionally, an applicant may not authorize contact with their current employer to verify employment until receiving a conditional offer, as the current employer may be unaware they are considering alternative employment. The NYCCHR has taken the position that, prior to making a conditional job offer, employers must complete their assessment of all aspects of a candidates qualifications, including anyOther Background Information, except for a medical examination and any review of information about, or potentially related to, a candidates criminal record, including driving records. For more information about this Advisory, please contact: [1] Certain exceptions apply wherein the Fair Chance Act does not preclude criminal conviction inquiries. Cases that resulted in a conviction for a non-criminal offense under the laws of another state. This may include creating a new communication for obtaining authorization to perform the first part of the Bifurcated Screening Process in order to obtain Other Background Information. 4N.Y.A.C. 3. The 28-page Guidance clarifies and interprets key amendments to the New York City Fair Chance Act (FCA), which take effect on July 29, 2021.1These amendments implement, among other things, (1) significant changes to the process by which an employer hiring or employing workers in New York City may take into account the criminal history of an applicant for employment; (2) a new requirement of an individualized assessment process for consideration of pending criminal arrests and charges, and for criminal convictions of current employees, and (3) a strict prohibition on the consideration of various types of non-convictions in employment decisions. The Guidance explains that temporary help agencies can be subject to liability for aiding and abetting discrimination by, for example, sending only applicants with less serious criminal histories to their employer clients. For purposes of analyzing criminal information, the Guidance provides the list of specific Article 23-A factors that employers should use in considering conviction history, as well as the list of specific factors employers should use when considering pending cases. As we previously advised, the City of New York amended its Fair Chance Act (FCA)also known as the ban the box lawwhich limits the types of inquiries employers can make regarding criminal history during the hiring process[1] and restricts when an employer can first seek criminal background information. If the applicant credibly demonstrates either that the information provided was not a misrepresentation or that a misrepresentation was unintentional, the employer is required to perform the Fair Chance Analysis before taking adverse action against the applicant. Where an employer is prohibited by another federal/state/local law from hiring/employing someone based on a particular criminal offense, the employer may advise applicants once they apply about any such criminal histories that are disqualifying for the position due to a legally-mandated exclusion. Additionally, in order to constitute a conditional offer of employment, the offer must be one that can only be revoked based on the results of a criminal background check (one that is compliant with the FCA), a medical exam as permitted by the Americans with Disabilities Act, or [o]ther information the employer could not have reasonably known before making the conditional offer.. L. 751. Employers are encouraged to use terms such as a consumer report or investigative consumer report rather than background check in their disclosure and authorization forms if used prior to a conditional offer. The 2021 amendments make certain clarifications, expand certain requirements on timing and analysis, and create new protections under the FCA. All Rights Reserved. Admin. N.Y.C. First, the FCA will prohibit employers from basing an adverse action against existing employees on any criminal conviction that occurs during employment, unless the employer has determined that: (a) there is a direct relationship between the alleged wrongdoing and the position; or (b) continuing the employment would pose an unreasonable risk to property or safety or welfare of other persons, pursuant to the seven-factor analysis discussed below. 's 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. How? The employer can conduct a criminal background check prior to the conditional offer and can disqualify an applicant based on an conviction that is subject to a legally-mandated exclusion, and can do so without following the Fair Chance Process. This may include verifications of prior employment, academic/educational history, drug tests, Social Security traces, reference checks, and other background checks (not including criminal and motor vehicle records). 12See, e.g.,Rod M. Fliegel and Garrick Y. Chan,The Dust Hasnt Settled Yet:Employers Must Continue to Be Thoughtful About Criminal Record Screening Policies, Littler Insight (July 6, 2021); Kwabena A. Appenteng and Andrew Gray,Illinois Imposes New Criminal History Check Requirements on Employers,Littler ASAP (Mar. After employers have inserted all of the required information regarding the Article 23-A factors, the Notice requires an employer to, We believe there is a direct relationship between your criminal record and the job we offered to you, and the factors listed above do not lessen that relationship or, We believe there is no direct relationship, but your criminal record creates an unreasonable risk to specific persons, the general public, or our property.. Fair Chance Act (Ban the Box) - OCWR Employers should evaluate their background check forms and processes in light of the Guidance. Employers and consumer reporting agencies may consider analyzing the lists and examples in the Guidance to determine whether to limit certain reporting or revising certain procedures to optimize compliance with this restriction. 7The Fair Chance Act Notice was revised effective June 23, 2021, and is available here:https://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf. This exemption, however, only applies to those positions regulated by SROs. The results of a criminal background check conducted in accordance with the requirements of the FCA; The results of a medical examination when permitted by the Americans with Disabilities Act, as amended; or. For a detailed analysis, see our November 13, 2015 article, Everything You Need to Know About New Yorks New FCA Guidance.. Code 8-107(23). In its July 15 Guidance, the NYCCHR indicates that reviewing any information that the employer could have conceivably collected and reviewed before extending the conditional offer at the post-offer phase violates the FCA. See Guidance, at page 14. Please understand that merely contacting us does not create an attorney-client relationship. The Guidance explains that doing so would unlawfully deny the applicant an individualized assessment of their conviction history and violate the Fair Chance Process. Jackson Lewis attorneys are available to assist employers with this and other workplace issues. For temporary help agencies, the Guidance explains that the conditional offer of employment and Fair Chance Process occurs prior to the applicant being placed in the agencys labor pool. Article 23-A factors include, among other things, the age of the person at the time of the occurrence, the seriousness of the offense, the specific duties and responsibilities related to the license or employment sought or held by the person, and the time elapsed since the occurrence. Relevant Fair Chance Factors to Be Considered. The New York City FCA initially took effect on October 27, 2015. See here and here for additional information about the SCDEA and the exemptions thereunder. Review their background check program policies, procedures and standard operating procedures for compliance with the amendments to the FCA. Employers that opt to follow such process will bear the burden of proving that the criminal information was inaccessible to decision-makers until after a conditional offer. Non-criminal History Background Checks Must Be Completed and Cleared Before Criminal History May Be Considered. The Guidance explains that with respect to an applicants criminal history preceding employment, other than pending arrests or charges, the full Article 23-A factors must still be applied. 1 These amendments implement, among other things, (1) significant changes to the process by which an employer hiring or employing workers in New York City may take into account the criminal history of an ap. The New York City Council has expanded NYC's Fair Chance Act to further restrict NYC employers from taking adverse actions against applicants or employees based on their criminal history. Turn it on to take full advantage of this site, then refresh the page. This is referred to as the fair chance analysis. New Enforcement Guidance Issued for New York City Fair Chance Act as Finally, the amendments to the FCA are taking place against the constantly shifting landscape of other new or amended ban the box laws,12FCRA class actions,13and discrimination claims by the EEOC and private plaintiffs bar.14 Employers, including contractors and government contractors, should continue to monitor new and impending developments in this area of the law. The New York City Council amended New York Citys Fair Chance Act (FCA) to significantly expand the scope of protections for applicants and employees with criminal charges or arrests. 2023 Seyfarth Shaw LLP. Those amendments, which add new protections for job seekers whose histories include certain non-convictions, such as unsealed violations and unsealed non-criminal offenses,[2] as well as for current employees facing pending criminal charges, take effect on July 29, 2021. Note that the FCA continues to exempt roles subject to laws and regulations which require a prospective employer to conduct a criminal background check (e.g., positions subject to Financial Industry Regulatory Authority, Securities and Exchange Commission, and Department of Transportation regulations). Further, employers and consumer reporting agencies may consider the restrictions on what information, and when, can be considered for employment purposes and make adjustments to ensure optimal effectiveness and compliance. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. As a reminder, employers using a third-party consumer reporting agency must follow the notice of intent to take adverse action/adverse action process required under the federal FCRA. The Third Circuit Court of Appeals held that defendant APA Transport violated the WARN Act when it closed its facility on one weeks notice after it failed to secure financing necessary to continue operations. Below is a summary of the existing law highlighting the changes set forth by the amendments, which were refined by guidance recently issued by the New York City Commission on Human Rights. Because the amended FCA requirements are expanded in scope and applicable to current employees, as well as independent contractors, freelancers, and interns, employers and contractors should review and consider revisions to their policies and practices with respect to background checks and the consideration of criminal history in making hiring and personnel decisions. The Fair Chance Process requires these additional steps before taking any adverse action: Employers should note that this Fair Chance Process is not limited to the hiring process but is also required if an employer learns that a current employee has a criminal record, causing the employer to consider termination or discipline of that employee.[13]. Whether the person has a certificate of relief from disabilities or for good conduct, which creates a presumption of rehabilitation. Providing a written copy of any inquiries made or reports received about the candidates criminal history; Requesting information regarding the circumstances that led to the conviction or pending case and information relevant to the Article 23-A Factors or NYC Fair Chance Factors, as appropriate; this may be accomplished by providing a blank copy of the Fair Chance Notice along with a request that the individual provide any information regarding each of the relevant factors listed in the Fair Chance Notice; Sharing a written copy of the employers analysis of the Fair Chance Factors (see below) using the Fair Chance Notice (or a similar document describing the relevant factors and the employers detailed explanations of conclusions drawn), and. The Guidance also cautions that a consumer reporting agency could be liable for aiding and abetting discrimination if it advised an employer to approve or deny an applicant based on a list of specified conviction history that the employer wishes to categorically exclude. an amendment to New York City Fair Chance Act NYFCA became effective and significantly extended protections for employees and applicants with criminal histories. Consumer reporting agencies conducting background checks must also ensure they do not aid or abet employment discrimination based on criminal history by, for example, advising an employer to approve or deny an applicant based on a list of conviction histories that the employer wishes to exclude. Non-convictions include, but are not limited to: (i) cases that resolved in a conviction for a non-criminal offense (as that term is defined by the law of another state), and (ii) convictions for the following non-exhaustive list of violations: trespass, disorderly conduct, failing to respond to an appearance ticket, loitering, harassment in the second degree, disorderly behavior, and loitering for the purposes of engaging in a prostitution offense. As of October 27, the Commission has not issued comprehensive guidance, leading to employer confusion over several elements of the new law. All employers considering the criminal history of employment applicants and current employees should be aware of certain key points clarified in the Guidance. Employers who wish to disqualify an applicant after an individualized analysis must continue to utilize a Fair Chance Act Notice (which has been slightly revised). Douglas T. Schwarz. The background check can be conducted prior a conditional offer of employment, but otherwise the Fair Chance Act procedures must be followed. The FCA, as amended, now explicitly states that a conditional offer of employment may only be rescinded based on: The Guidance makes clear that these narrow grounds for rescission of a conditional offer require employers that review an applicants criminal history before making a final offer of employment to implement a two-tiered screening process, wherein 1) all non-criminal pre-employment screenings, such as a review of the applicants employment and educational history, must be completed and passed by the applicant before a conditional offer of employment is made; and thereafter 2) employers may, after a conditional offer of employment, request and review the applicants criminal history, which may only be considered in compliance with the individualized assessment, notice and consideration requirements of the FCA. New York City Enacts Ban-the-Box Legislation, New York City Human Rights Commission Fair Chance Act Fact Sheet Offers Compliance Guidance, New York City Council Amends New York City Fair Chance Act, Initial Ripple Effects of U.S. Supreme Court Affirmative Action in Student Admissions Decision, U.S. Supreme Court Rules on Narrow Jurisdictional Question in Fractured Opinion, Retail Industry Workplace Law Update Summer 2023, Employers can only request and review criminal history information after favorably evaluating the candidates non-criminal information. The FCA also requires that an employer perform and document an analysis under Article 23-A of the New York Correction Lawthe existing state lawif the employer is considering taking adverse action against an applicant based on his or her criminal history. Effective July 29, 2021, the FCA will expand in scope in several important respects. Lastly, while the existing FCA always required that the employer consider rehabilitation and good conduct, the seven-factor analysis specific to pending charges and convictions that arise during employment includes the individuals history of positive performance and conduct on the job or in the community as an example of rehabilitation and good conduct.