In January 2021, the New York City Council amended the Fair Chance Act (FCA) that prohibits employers in New York City from inquiring into job applicants' criminal history until after a conditional job offer was made. The New York City Fair Chance Act, or NYCFCA, went into effect on July 29, 2021, and expanded protection for individuals with criminal records. The amendments in this law also require background checks to be conducted in a two-step process to provide 'complete protection' for non-convictions and add specific Fair Credit Act factors that employers must review for pending criminal charges.
What employers need to know about the guidance:
- Employers should conduct two separate screenings: everything other than criminal checks and driving (like education, employment, professional licenses, drug tests and government list checks), and then criminal and driving checks.
- "Everything other than criminal and driving" should be done before a conditional offer of employment.
Two-Step Background Check Requirement
Under NYCFCA, employers can only request and review criminal history information after favorably evaluating the candidate's non-criminal information. Employers who request background checks on applicants should first receive non-criminal information. Evaluate it, and then receive and evaluate the criminal information.
1. Before a Conditional Offer:
- Complete everything other than criminal and driving checks. That may include employment and education verification, sanctions, drug screens and other checks.
- Remove even neutral statements about criminal history in applications, job postings, etc. prior to a conditional offer of employment.
- Consider removing criminal history questions for applicants in NYC or revising the timing or substance of those questions if the questions are posed prior to all other information being considered and prior to the “everything other than criminal and driving” check.
- Ensure that authorizations and disclosures made related to the “everything other than criminal and driving” checks do not mention criminal background checks.
- Consider a separate set of disclosures and authorizations for the post offer criminal and driving check.
2. The Conditional Offer of Employment:
- Can only request and review criminal history information after favorably evaluating the candidate’s non-criminal information.
- Those who request background checks on applicants should first receive the non-criminal information, evaluate it, and then receive and evaluate the criminal information.
- The Guidance allows for MVRs to be treated similar to criminal history and be conducted as the last step in the process.
3. After the Conditional Offer:
- Can run criminal and driving checks.
- May not consider “Non-convictions” (although not pending cases).
A conditional offer is defined as an offer, promotion, or transfer that can be revoked based on:
- The results of a criminal background check.
- The results of a medical examination as permitted by the Americans with Disabilities Act (ADA).
- Other information an employer could not have reasonably known in advance that based on the information, they would not have made the offer regardless the result of the criminal background check.
Employers may not consider non-convictions
Per the Guidance, a non-conviction is:
"A criminal action that has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56, 210.46, 210.47, or 215.10 of the New York Criminal Procedure Law ("CPL") unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution, or a criminal action that is not currently pending and was concluded in one of the following ways:
- Termination in favor of the individual, as defined by CPL § 160.50, even if not sealed.
- Adjudication as a youthful offender, as defined by CPL § 720.35, even if not sealed or marked confidential.
- Conviction of a violation, as defined in Penal Law § 10.00, even if not sealed;
- Conviction of a non-criminal offense, as defined by a law of another state, even if not sealed. Or
- Convictions that have been sealed under CPL § 160.58 or § 160.59.
"Non-conviction" includes a disposition of a criminal matter under federal law or the law of another state that results in a status comparable to a "non-conviction" under New York law as defined here."
Examples of non-convictions include:
- Instances when the police decided not to charge a person following their arrest.
- Cases in which the prosecutor declined to prosecute the person following their arrest.
- Cases that were adjourned in contemplation of dismissal (unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution).
- Cases in which all charges were dismissed.
- Cases that resulted in an acquittal on all charges.
- Cases in which the verdict was set aside or the judgment was vacated by the court and no new trial was ordered, nor is any appeal by the prosecution pending.
- Cases in which the person was adjudicated as a youthful offender.
- Cases that resolved in a conviction for a violation, even if not sealed.
Evaluating the Applicant Using the Fair Chance Analysis:
- The Commission has provided and updated version of the Fair Chance Analysis forms for employers to complete if they are considering taking adverse action based on a criminal record (both sets of factors are identified on the form).
- Employers now have different sets of factors that must be considered depending on whether the criminal record being considered is a conviction or a pending case.
Withdrawing an Offer Pursuant to the Fair Chance Process:
- Increase the length of time between sending the pre-adverse action letter (including the Fair Chance Analysis form) and the final adverse action letter – the new guidance requires 5 business days from the time the communication is received by the applicant.
- A Consumer Reporting Agency cannot advise an employer to approve or deny an applicant based on a list of specified conviction histories that the employer wishes to categorically exclude.
Guidance regarding current employees
- Current employees are also protected from discipline or termination base on conviction history or pending case information except by conducting a Fair Chance Analysis that is similar (but not the same) as the pre-hire process.
How Orange Tree can help
Orange Tree is helping clients who have positions that fall within the jurisdiction of the New York City Human Rights Law (NYCHRL) by working with them to make adjustments to their background screening process, including:
- Creating location-specific service packages so that the "everything other than criminal and driving" checks can be ordered first and the "criminal and driving" checks can be ordered later.
- Configuring two separate sets of disclosures and authorizations and to not ask the admitted criminal history question (or not ask the question until the "criminal and driving" checks are ordered)
- Increasing the length of time between sending out the pre-adverse and the final adverse action letter to at least 7 business days.
Schedule a call to learn how Orange Tree can help ensure your screening process is compliant with the current and changing laws and regulations
We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
