All Employers of NYC Applicants and Employees
January 9, 2021
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New York City’s existing “ban-the-box” law, called the New York City Fair Chance Act (FCA), was recently expanded with the passing of bill Int. 1314-A. The expanded FCA imposes stronger restrictions on employers who are considering adverse action against applicants or even current employees in specific circumstances and prohibits inquiry into or consideration of dismissed or non-criminal violations in employment decisions.
The FCA originally implemented several provisions impacting recruiting and hiring efforts. Employers cannot inquire into any type of criminal history until after a conditional offer of employment is extended to the applicant. Employers must conduct an individualized assessment of an applicant’s conviction history, utilizing an eight-factor test to determine if the conviction history negatively impacts the applicant’s fitness for employment. If the employment offer will be withdrawn, employers must follow a specific process to notify the applicant and allow them the opportunity to respond.
Int. 1314-A expands upon these existing provisions by implementing the below requirements as well:
- Restrictions on Considering Criminal History During Applicant Phase: Employers are required to apply the FCA review process before taking any adverse action based on an applicant or employee’s pending or open criminal charges, arrests, or accusations. This includes withdrawing a conditional offer of employment.
- Consideration of Age at Time of Pending Charges: If the applicant/employee was 25 years or younger at the time of the offense, employers must consider any evidence of rehabilitation or good conduct. The amended FCA further requires employers to consider any additional information the applicant/employee furnishes regarding rehabilitation and good conduct, such as a history of positive performance or conduct in the job or in the community.
- Convictions During Employment: The FCA notification and review process now also applies to criminal convictions arising during employment. Employers must follow the FCA process before taking adverse action based on a current employee’s conviction during employment.
- Expanded Prohibitions on Certain Types of Criminal History: Employers may no longer inquire into criminal history regarding “non-pending” arrests or criminal accusations, adjournments in contemplation of dismissal, youth offender adjudications, or sealed offenses. Additionally, inquiries regarding, or denying employment based upon, violations and non-criminal offenses (e.g., non-criminal disorderly conduct) are now prohibited. This provision excludes consideration of a motor vehicle record.
- Restrictions on Revoking Conditional Offers: The amendments codify a rule that permits employers to revoke a conditional offer of employment based on (1) the results of a criminal background check after the FCA process has been followed; (2) the results of a medical exam permitted under the ADA; or (3) other material information the employer could not have reasonably known prior to making the offer that would have resulted in the offer not being extended.
- Affirmative Requirement to Solicit Information for FCA Assessment: Employers must now solicit information from applicants/employees related to all factors involved in an FCA analysis, rather than just evidence of rehabilitation and good conduct.
- Review the text of the bill here.
- Have appropriate personnel trained on the expanded requirements for inquiring into, reviewing, or making employment decisions based upon criminal history.
- Update background screening procedures for compliance.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
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