New York City Fair Chance Act Buries Employers with More Paperwork

Nick Fishman

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You know that feeling when you get to deliver what you know is going to be very unpopular news to a group of people and you have to present it as a positive? Well, get ready those of you conducting employment background checks in New York City, because I’m about to blow your mind with . . .  wait for it. MORE PAPERWORK!!!!!!

As you all know by now, New York City passed the Fair Chance Act on September 3, 2015 which addresses employers’ responsibilities as they relate to criminal background checks. The law, set to take effect on Tuesday, October 27, 2015, is designed to delay criminal background screening to allow candidates an opportunity to interview and be considered for jobs before potential elimination by a background check. Under the Fair Chance Act, New York City employers are prohibited from inquiring or obtaining any statement about an applicant’s criminal background until after a conditional offer of employment has been made.  For purposes of the Act, “any statement” means a statement communicated in writing or otherwise to the applicant for purposes of obtaining criminal background information regarding: (i) an arrest record; (ii) a conviction record; or (iii) a criminal background check.

While we’ve outlined the parameters of this law in previous blog posts, there was one provision that was a little unclear until now.

  • Before an employer takes adverse action (e.g. rescind a job offer), the employer is obligated to provide the applicant with: (1) a copy of the New York Corrections Law, Article 23-A; (2) a copy of the document on which the decision was based (the consumer report); and (3) a copy of the employer’s written analysis conducted to make this determination.
  • The written analysis should include the decision maker’s consideration of the factors listed in Article 23-A and its determination as to whether the criminal history is directly related to the position sought or otherwise poses an unreasonable risk as delineated in 23-A.

Introducing the Fair Chance Act Notice

On Friday, the New York City Commission on Human Rights (NYCCHR) distributed the Fair Chance Act Notice form which must be completed and sent to the candidate before taking any adverse action.

Fair Chance Act

It is important to recognize that these responsibilities are requirements regardless of whether you conduct the background check in house or if you outsource to a background screening company. Further, you must adhere to these requirements regardless of whether you intend to employ the individual in New York City or not. If the candidate currently resides in New York City, then these requirements must be followed.

For a complete list of the New York City Fair Chance Act requirements, see below:

  • After (and only after) a conditional offer has been made, an employer can obtain consent (authorization and disclosure) to run a criminal background check (obtain a “consumer report”).
  • After running the background check, if the employer conducts an analysis and adverse action is warranted under New York Corrections Law 23-A, the employer can proceed with taking adverse action based on the information.
  • Before an employer takes adverse action (e.g. rescind a job offer), the employer is obligated to provide the applicant with: (1) a copy of the New York Corrections Law, Article 23-A; (2) a copy of the document on which the decision was based (the consumer report); and (3) a copy of the employer’s written analysis conducted to make this determination.
  • The written analysis should include the decision maker’s consideration of the factors listed in Article 23-A and its determination as to whether the criminal history is directly related to the position sought or otherwise poses an unreasonable risk as delineated in 23-A.
  • The employer must then hold the job opportunity open for a reasonable amount of time, but not less than three business days, so that the applicant can respond with additional or mitigating information.
  • If a criminal record is discovered or disclosed post conditional hire and the employer learns through a background check that the candidate failed to disclose a conviction, the employer must follow the Fair Chance Act process and give the candidate a copy of the background check and notice of intent to take adverse action even if the reason for the adverse action is dishonesty/failure to disclose.

Our friends at Seyfarth Shaw also published a helpful guide for what employers can do to get in compliance.

Good luck with your new found work and please, please, please don’t shoot the messenger.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
Nick Fishman
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