The New York City Commission on Human Rights has issued a fact sheet and model notice regarding compliance with New York City’s newly enacted Fair Chance Act, which prohibits all employers in New York City with at least four employees from making any inquiry into a job applicant’s criminal history until after a conditional offer of employment has been extended to the applicant. (See our September alert
for a detailed analysis of the new law.)
The Commission’s fact sheet reiterates the key provisions of the law and provides compliance information for applicants and employers. Specifically, the fact sheet clarifies:
- Before a conditional offer of employment is made, an employer cannot ask an applicant to authorize a background check or ask the applicant any questions about his or her criminal record. Likewise, employers cannot disseminate job postings that reference arrests or convictions, such as “background check required,” “no felons” or “must have a clean record.”
- After an employer extends a conditional offer of employment, the employer can ask about and consider an applicant’s criminal record. Employers can require applicants to authorize a background check at this stage and can refuse to hire an applicant who refuses to consent to same. Similarly, employers can ask if an applicant has any criminal convictions and applicants must disclose this information, no matter how old the convictions are. Employers, however, can never ask about, and applicants should never disclose, any arrest that did not lead to a conviction or any convictions that are sealed.
- Once an employer learns about an applicant’s criminal record, it may decide not to hire the applicant, however, before a final employment decision is made, the employer must: (a) provide the applicant with a copy of the background report; (b) prepare and provide the applicant with a written evaluation of the applicant based on certain enumerated factors; and (c) hold the position open for a minimum of three (3) business days after the written evaluation is provided to give the applicant an opportunity to respond. The Commission has issued a model Fair Chance Notice for employers to use to comply with the written analysis requirement. After conducting this analysis, an employer may elect to revoke a job offer only if (i) a direct relationship exists between the applicant’s conviction and the desired position; or (ii) the applicant’s conviction history creates an unreasonable risk to people or property.
Given that the Fair Chance Act is now in effect, employers in New York City are strongly urged to remove all criminal background inquiries from their pre-conditional offer application materials and job postings. Hiring managers and interviewers should be instructed not to ask applicants about their criminal history until after making a conditional offer of employment. Likewise, employers should familiarize themselves with the model Fair Chance Notice promulgated by the Commission.
For more information about the Fair Chance Act, contact any of these partners in DLA Piper’s Employment group: Eric J. Wallach, Joseph D. Guarino, Brian S. Kaplan, Joseph A. Piesco, or Daniel Turinsky.