Employers (and perhaps their consumer reporting agencies) should use the issuance of the Guidance as an opportune time to examine the background check process, especially the nuances of the two-step process surrounding the conditional offer, as well as the forms that are utilized at various stages, and also any applicant tracking systems or other systems utilized during the hiring process. In light of these amendments, the New York City Commission on Human Rights will likely update its forms and notices, including the Fair Chance Evaluation Form, however, as of the date of this update, they have not done so. The FCA continues to permit employers to take adverse action against applicants or employees who intentionally misrepresent their criminal history, but the law now requires the employer to: If the applicant or employee credibly demonstrates that the misrepresentation was unintentional or the information provided was not a misrepresentation, the employer is required to perform the Fair Chance Process before taking any adverse action. On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) released detailed legal enforcement guidance (Guidance) to help employers comply with the expanded law. The amendments expand this protection to prohibit any inquiry in writing or otherwise about any arrest or criminal accusation. Please understand that merely contacting us does not create an attorney-client relationship. Below explains why. as required by Article 23-A of the New York State Correction Law, . For more information about this Advisory, please contact: [1] Certain exceptions apply wherein the Fair Chance Act does not preclude criminal conviction inquiries. 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.. Correction Law Article 23-A factors, are as follows: An employer can only deny employment based on an applicants or employees conviction history or pending case if, after conducting an analysis of the relevant factors, it 1) determines there is a direct relationship between the applicants conviction history or pending case and the job; or 2) shows that employing the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.9. Another difficulty inherent in the two-tiered approach is the need for an authorization from the applicant to run an employment-related background check (as required by the Fair Credit Reporting Act [FCRA]) that will review non-criminal history prior to a conditional offer. Seyfarth Synopsis: The New York Citys Fair Chance Act amendments are scheduled to go into effect on July 29, 2021, after bill Introduction No. 14SeeFliegel and Chan, The Dust Hasnt Settled Yet, supra. The Rationale for Piecemeal Background Reviews. Fair Chance Evaluation Form ______________________________________________ Applicant Name After extending a conditional offer of employment, we checked your criminal record. New York City - Fair Chance Act Form - Accurate 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. Based on the enclosed check, we have reservations about hiring you for the position of _________________________, and may decide to retract our job offer for reasons explained below. 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. New Enforcement Guidance Issued for New York City Fair Chance Act as 4N.Y.A.C. The NYCCHR recognizes that some consumer reporting agencies may not be able to provide two separate reports (or an employer may wish to receive this information together, in one report). The Time to Respond to the Fair Chance Act Notice is Increased from 3 to 5 Business Days. The FCA and New York state law have already prohibited a denial of employment based solely on a criminal conviction or findings that an applicant lacks good moral character due to criminal history without undergoing the appropriate analysis under New York Article 23-A. The amendments now explicitly codify that employers are prohibited from taking any adverse action: (a) against a current employee who is convicted during the employment, or based on a finding that the person lacks good moral character because of the conviction, or. Employers should ensure that they are aware of the reaffirmation of prior interpretation and the new changes that have occurred by these amendments. The Guidance suggests that in a situation of such inadvertent disclosure, the employer should state that, by law, it will consider the applicants record if it decides to make them a conditional offer. Employers must allow applicants/employees at least five business days (originally three business days) to respond to the Fair Chance Act Notice. For more information, visit https://www.jacksonlewis.com. Next Flipbook. Jul 8, 2021 New York City Fair Chance Act: 2021 Amendments By: Pamela Devata, Robert Szyba and Courtney Stieber Seyfarth Synopsis: The New York City's Fair Chance Act amendments are scheduled to go into effect on July 29, 2021, after bill Introduction No. As we previously reported in July and June, New York City recently passed the Fair Chance Act (FCA), which becomes effective on Tuesday, October 27, 2015, and is applicable to criminal background checks. Ensure that questionnaires and disclosure forms used in connection with post-conditional offer inquiries about an applicants criminal history, particularly those prepared and supplied by third-party consumer reporting agencies or other vendors engaged to conduct background checks, clearly convey the scope of information being requested. Douglas T. Schwarz. 1SeeStephen A. Fuchs,New York City Expands Scope of Its Ban-the-Box Law,Littler Insight (Dec. 16, 2020). If a criminal background check reveals any information, such as a conviction history or pending case(s), causing the employer to consider rescinding the conditional job offer, then the employer must follow the Fair Chance Process with an evaluation using the relevant Fair Chance Factors. An employer can disqualify an applicant based on an intentional misrepresentation about the applicants conviction history or pending case. The Guidance provides a list of non-convictions that fall into these categories, and points out that non-conviction information from other jurisdictions that is comparable will also be barred. Other information the employer could not have reasonably known before the conditional offer if the employer can show as an affirmative defense that, based on the new information, it would not have made the offer regardless of the results of the criminal background check. Consider whether criminal background checks are necessary for every position. Article 23-A Factors: Relevant to Pre-Employment Conviction History, NYC Fair Chance Factors: Relevant to Pending Criminal Cases (Either Pre-Employment or Post-Employment) and Post-Employment Convictions, Intentional Misrepresentations of Pending Cases or Conviction Histories. Whether the person has a certificate of relief from disabilities or for good conduct, which creates a presumption of rehabilitation. New York City - Fair Chance Act Form. Relatedly, the FCAs amendments have set forth new guidelines with respect to the consideration of pending cases and criminal accusations with respect to employment decisions impacting both applicants and employees. The NYCCHR believes that bifurcation will isolate criminal information from any other information that might inform an employers decision during pre-employment screening, and if an employer revokes an offer after a conditional offer, it will only be because of the candidates criminal history. Turn it on to take full advantage of this site, then refresh the page. 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. 13See, e.g. 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. 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. Privacy, Cybersecurity & Data Asset Management, If an employer is considering revoking its conditional offer to a candidate with one or more pre-employment convictions, the employer must analyze the situation using a Fair Chance Analysis, which contemplates , If an employer is considering taking an adverse action against a candidate or current employee with a pending criminal case OR a current employee with a conviction, the employer must analyze the situation using a Fair Chance Analysis that contemplates . 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 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. Providing the candidate with at least five business days to respond to the employers concerns. [3] The Guidance represents the NYCCHRs interpretation of the FCA and the amendments thereto. 26, 2021). All Rights Reserved. The Commission offers that employers who make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the Fair Chance Act. All employers considering the criminal history of employment applicants and current employees should be aware of certain key points clarified in the Guidance. [13] In such circumstances, NYCHRL does not prohibit employers from placing employees on paid or unpaid leave for a reasonable amount of time during the pendency of the Fair Chance Process. 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. Finally, the amended FCA does contain one favorable provision for employers, which allows an employer to base an adverse action on a misrepresentation made by the applicant or employee regarding their criminal background, as long as: (i) the inquiry was lawful, (ii) the applicant is provided a copy of the documents supporting the employers position, and (iii) the applicant is given an opportunity to respond in a timely manner. If you are a multi-jurisdictional employer, although many employers seek to keep HR processes consistent from jurisdiction to jurisdiction, decide whether it may make sense to use this new manner of background checking in New York City only. The background check can be conducted prior a conditional offer of employment, but otherwise the Fair Chance Act procedures must be followed. 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. The amendments add that for current employees, prior to taking adverse employment action, employers are required to (1) request from the employee information relating to the relevant Fair Chance factors, (2) perform an individualized analysis consistent with the FCA (and Article 23-A), (3) provide a written copy of the analysis to the employee, including the supportive documents upon which the analysis and determination are based, and (4) allow the employee reasonable time to respond before taking adverse action. Employers are permitted to place an employee on unpaid leave for a reasonable time while the employer engages in the Fair Chance Process for a current employee. 5The Commission notes that the FCRA does not require employers to disclose the specific scope of a consumer report, or to specify that criminal information will be reviewed in the authorization notice. Finally, employers and contractors may also need to confer with background check vendors to assess whether those vendors can implement the two-tiered process necessary to comply with the amended FCAs definition of conditional offer. Second, under the unamended FCA, an employers obligation to solicit information from the applicant was limited to information concerning rehabilitation and good conduct. 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. Review all documents used in the hiring and screening process, including online job postings, job applications, offer letters, background check disclosure and authorization documents, FCA Notices, and pre-adverse and adverse action notices for compliance with the FCA, as amended. PDF NYC FAIR CHANCE ACT NOTICE FORM(41469049v1) 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. Prior results do not guarantee a similar outcome. So, driving abstracts should also not be requested or at least not reviewed until after the conditional offer has been extended. 10For purposes of the Amendments to FCA, traffic violations are excluded from the definition of violations in accordance with New York Penal Law 10.00. From a practical perspective, the Guidance seemingly requires that an employer request two reports from the employers background check vendor and evaluate those reports at different times of the pre-hire process. The law will go into effect on or about July 29, 2021. The Commission recommends that employers who are availing themselves of exemptions should inform the applicants/employees of the exemption that applies and keep a record of using the exemptions for a period of 3 years from the date the exemption is used, as the Commission anticipates requesting exemption logs in the event of an investigation. The amendments are effective on July 29, 2021. Independent contractors are covered under the FCA and have the same right to the Fair Chance Process as employees and applicants. (3) allow the applicant a reasonable time period of at least 5 business days from receipt of the inquiry and analysis to respond to the employers concerns. Criminal charges that are adjourned in contemplation of dismissal are not to be considered pending unless the adjournment is revoked and the case is restored to the courts active calendar. 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. 's 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. 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. The New York City Council amended New York City's Fair Chance Act (FCA) to significantly expand the scope of protections for applicants and employees with criminal charges or arrests. Any additional information produced by the applicant or employee, or produced on their behalf, regarding their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community. The NYCCHR explains that the need for this bifurcation is based on the concern that employers often revoke job offers as soon as they receive a background report containing any criminal information, blaming the revocation on factors other than the candidates criminal conviction history, without regard for the principles of the FCA. The elimination of the time that has passed since the criminal offense as a factor is why there are fewer Fair Chance Factors than under Article 23-A. For the seriousness of the crime element, the Notice expressly mentions crimes involving only violence and theft (suggesting that these are the most relevant ones) while New York state Article 23-A arguably considers all crimes (i.e., not just those involving violence and theft). Expanded Protections: Convictions of Current Employees & Pending Charges. The Guidance explains that the five business days begin running what an applicant receives both the inquiry and notice and suggests that employers confirm receipt. The seriousness of the offense or offenses; The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public; and. The Guidance addresses certain difficulties faced by employers attempting to comply with the requirement of a two-tiered background check process. Admin. Health Care Law, Workforce Management Lawyer, Litigation Attorney, July 22, 2021 | Publications | 12 minute read. Then, the employer must move the conversation to a different topic. New York City's 'Ban-the-Box' Amendments Are in Effect - SHRM See page 21 of the Guidance. 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. The Commissions Notice has a number of elementsseveral of which appear to be contrary to New York state background check law and/or the federal Fair Credit Reporting Act (FCRA) (and which may be further fleshed out once the Commission guidance is issued and/or after legal challenges to the Notice): The wording and structure of the Notice prevent employers from checking both boxes and arguing that both apply, as arguably contemplated by N.Y. 8This factor has been modified from the existing Article 23-A factor applied to the conviction history of applicants requiring consideration of the age of the applicant at the time of the criminal offense, and eliminates the criteria ofhow long ago the criminal offense occurred, as that criteria is inapplicable to open, pending charges, or to convictions occurring during employment. We highlight the changes in the law and action items below. N.Y. Corr. Recipients should consult with counsel before taking any actions based on the information contained within this material. The Guidance explains that once an employer determines that there is a basis to withdraw an offer, it must: (1) provide the applicant with a copy of everything the employer consideredfor example, this includes a background report, print-outs of any internet searches, and summaries of any oral conversations where relevant information was obtained; (2) provide the applicant a written copy of the Fair Chance Analysis; and. PDF Fair Chance Act Notice - NYC.gov For current employees, the Guidance explains that they can be placed on unpaid leave for a reasonable period of time. 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.. USERRA has numerous exemptions to the statutes five-year service limit, and employers may need to consult an employees orders and discharge documents (DD-214 or NGB 22) before denying an employee reemployment rights under USERRA. In addition, should an employer adopt the two-tiered approach recommended by the NYCCHR, it should ensure that any disclosure and authorization forms applicable to noncriminal, preconditional offer reports not reference a background check, as this would violate the FCAs existing requirement that an employers background check requirement not even be mentioned until after the conditional offer has been extended. [12] Further, if a review of potential criminal history causes an employer to reconsider the conditional offer, before making a final determination, the employer must follow the Fair Chance Process (described below). 6The individualized assessment Requirements of New York Correction Law, Article 23-A have long applied to current employees. The Commissions Notice may be downloaded from the Commissions website. 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Fair Chance Act Notice for Job Applicants After extending a conditional offer of employment, we checked your criminal record. What bearing, if any, the criminal offense(s) for which the candidate or employee was convicted (or that are alleged in the case of pending arrests or criminal accusations) will have on the persons fitness or ability to perform any of the jobs duties or responsibilities. The Guidance contains multiple noteworthy and important points. Based on the enclosed check, we have reservations about hiring you for the position of ____________________________________, and may decide to retract our job offer. Any decision to stop considering a candidate based on the first report should be acted upon prior to moving on with the conditional offer stage. The Commission expects employers to work with their consumer reporting agencies (CRAs) to obtain separate non-criminal and criminal background check reports. The New York City Fair Chance Act and other background check laws, as well as all federal and state background check requirements, are summarized in the firms O-D Comply: Background Checks and O-D Comply: Employment Applications subscription materials, which are updated and provided to O-D Comply subscribers as the law changes. The Commission views delays beyond 5 business days from when the employee receives the Fair Chance Notice (i.e., the time frame for the employee to respond) to be presumptively unreasonable and an employers continuing unpaid leave thereafter may be viewed by the Commission as having taken an adverse employment action. NYC Fair Chance Act: Legal Enforcement Guidance For 2021 Amendments. Copyright 2023 Morgan, Lewis & Bockius LLP. Updates to NYC Fair Chance Act Expand Protections for Applicants, Current Employees, Independent Contractors, The policy of the city against considering criminal history, The jobs specific duties and responsibilities, The impact of the criminal conviction, pending arrest, or criminal accusation on the persons fitness or ability to perform one or more such duties or responsibilities, Whether the person was 25 years or younger when the offense occurred, The interest of the employer in protecting property, safety, and welfare of specific individuals or the general public. 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. 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. Any information regarding the persons rehabilitation or good conduct. Employers cannot inquire about or consider non-conviction information of applicants or employees. Before finalizing the no-hire decision, the FCA demands that an employer (1) provide the applicant written notice, which includes the documentation the employer relied upon to support its preliminary no-hire decision and a copy of its written fair chance analysis; and (2) give the applicant an opportunity to respond to the notice before a final employment decision is made. Review and update, as necessary, any hiring policy manuals, standard disclosure and/or authorization forms, and wording used in any correspondence with prospective employees or candidates, including job postings and notices, as well as offer letters, to ensure that they comply with FCA requirements. All Rights Reserved. Review their background check program policies, procedures and standard operating procedures for compliance with the amendments to the FCA. The amendments also increase from three to five business days the amount of time that the position must be held open to give the applicant time to respond to the employers individualized analysis before a conditional offer of employment can be withdrawn. It generally prohibits employers from making inquiries about an applicants criminal conviction record until after a conditional offer of employment. 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. 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]. Non-criminal information in the driving report may be treated as information the employer could not have reasonably know before the conditional offer. 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. In a case where criminal information is received prior to a job offer, the burden will be on the employer to prove that it did not consider any such criminal history at the pre-offer stage, if such history affects the employment decision. Title: Untitled Author: Steve Millwee Created Date . Then, and only after the employer has concluded that the candidate satisfied the noncriminal components of the background check, and only after a conditional offer has been extended, can the employer then request the criminal background check report. The Court rejected plaintiffs argument, however, that APA Transport and a related entity, APA Truck Leasing, were a single employer for WARN Act purposes, such that APA Truck Leasing was jointly liable for the violation.
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