New York, NY: Fair Chance Act Guidance Clarifies Requirements

The New York City Fair Chance Act (FCA) went into effect on July 29, 2021. Recently, the New York City Commission on Human Rights (NYCCHR) issued guidance clarifying FCA requirements for employers. The following are key updates employers should note.

The most significant clarification is that employers must segregate non-criminal from criminal preemployment screening in a two-tier process. Specifically, non-criminal preemployment screening must occur first, before a conditional offer of employment in order to comply with the limited reasons for rescinding an offer of employment. Also, any corresponding screening authorization required by the individual should refrain from using the term “background check” to avoid communicating that a criminal screening will occur prior to a conditional offer of employment. Similarly, non-criminal and criminal screen reports must be segregated either by the background check provider, or from the employer’s hiring decision-maker to ensure that criminal history is not contemplated before a conditional offer of employment is made. Driving records must also be treated as part of the criminal background check and may only be considered after a conditional offer of employment.

The guidance also identified a modified version of the N.Y. Correction Law Article 23-A factors employers must use when considering pending criminal charges of applicants or employees, or convictions of current employees. However, the regular Article 23-A factors must still be applied when considering an applicant’s criminal history preceding employment that does not involve pending arrests or charges.

Additionally, applicant and employee “non-convictions” cannot be considered by employers. This includes criminal cases that were resolved in the individual’s favor, non-criminal convictions, or matters that are otherwise prohibited from being considered as a basis for adverse action.

Finally, the guidance extends the time for an individual to respond to a FCA Notice from three business days to five business days, beginning from the date the applicant receives both the inquiry and notice.

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