Effective July 29, 2021, revisions to the New York City Fair Chance Act (FCA) will impose new requirements on New York City employers who evaluate criminal history information, including pending criminal charges, when making employment decisions that impact applicants, current employees, interns, freelancers, and independent contractors.
Since 2015, the FCA has prohibited most employers in New York City with four or more employees from asking about the criminal history of job applicants or conducting a criminal background check until after a conditional offer of employment is made. After a conditional offer of employment is made, the FCA requires that employers analyze various factors set by New York state law before determining that their criminal history, which is defined as any “[r]ecords of an individual’s convictions or non-convictions, including arrests or currently pending criminal cases,” disqualifies the individual from employment. This is referred to as the “fair chance” analysis. 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.
Effective July 29, 2021, the FCA will expand in scope in several important respects.
First, the FCA will prohibit employers from basing an adverse action against existing employees on any criminal conviction that occurs during employment, unless the employer has determined that: (a) there is a direct relationship between the alleged wrongdoing and the position; or (b) continuing the employment would pose an unreasonable risk to property or safety or welfare of other persons, pursuant to the seven-factor analysis discussed below.
Relatedly, the FCA’s 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.
Specifically, when determining whether a “direct relationship” exists or the criminal record indicates the individual poses an “unreasonable risk,” employers evaluating pending charges (for both applicants and employees) for convictions that occurred during employment (for current employees) must consider the following factors:
The key distinction between this seven-factor analysis and the eight-factor Article 23-A analysis applicable to an applicant’s pre-hire conviction history is that it eliminates the employer’s obligation to consider: (1) the amount of time that has passed since the offense, as that factor will almost always weigh against the applicant or employee; and (2) whether the individual has obtained any certificate or relief from disabilities or good conduct, given that such certificates can only be obtained in connection with a conviction. Lastly, while the existing FCA always required that the employer consider rehabilitation and good conduct, the seven-factor analysis specific to pending charges and convictions that arise during employment includes the individual’s “history of positive performance and conduct on the job or in the community” as an example of rehabilitation and good conduct. This is particularly important for evaluating the eligibility of current employees, as it suggests that the individual’s performance history must be accounted for before an adverse employment action is made against them.
Second, under the unamended FCA, an employer’s obligation to solicit information from the applicant was limited to information concerning rehabilitation and good conduct. Now, before taking an adverse action based upon criminal history, an employer must solicit information related to all of the “fair chance factors” from the employee or applicant. As noted above, the factors an employer must consider vary slightly, depending on whether the prospectively disqualifying record is a criminal conviction or a pending charge, as well as whether the individual against whom the adverse action may be taken is an applicant or current employee.
Consistent with the unamended FCA, once an employer decides to take an adverse action based upon criminal history, the employer must (1) provide a written copy of the “fair chance” analysis, including supporting documents; and (2) allow the individual a reasonable time to respond.
Under the amendments, as confirmed by guidance issued the New York City Commission on Human Rights (NYCCHR) on July 15, 2021 (referred to as the Guidance), an employer must provide the written analysis not only to applicants, but also to current employees. 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. While employers are not obligated to use the “fair chance notice” published by the NYCCHR, doing so is the simplest way to ensure compliance with all updated requirements.
Fourth, under the existing FCA, employers are prohibited from basing an adverse employment action on any “non-conviction” information, as defined by Section 296 of the New York State Executive Law. The amended FCA and the NYCCHR’s Guidance solidifies that employers should also not request information regarding a “non-conviction” when making an employment decision. 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.
Fifth, the amended FCA codifies the definition of “conditional offer” that had existed in prior rules issued by the NYCCHR. Specifically, under the amended FCA, a conditional offer is defined as an offer that can only be lawfully revoked based upon: (a) the results of a criminal background check conducted in accordance with the FCA; (b) the results of a medical examination when permitted by the Americans with Disabilities Act; or (c) other information the employer could not have reasonably known before the conditional offer (but only if the employer can demonstrate it would not have made the offer regardless of the results of the criminal background check).
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. For example, the NYCCHR has indicated that employers who obtain noncriminal history information during the background check phase, such as employment references and academic history, must review that information at the preconditional offer phase. 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.
From a practical perspective, the Guidance seemingly requires that an employer request two reports from the employer’s background check vendor and evaluate those reports at different times of the pre-hire process. 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 FCA’s existing requirement that an employer’s background check requirement not even be mentioned until after the conditional offer has been extended.
Sixth, because protections under the New York City Human Rights Law “relating to employees apply to interns, freelancers and independent contractors,” the protections applicable to current “employees” under the FCA now expressly apply to those nonemployee populations as well.
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 employer’s position, and (iii) the applicant is given an opportunity to respond in a timely manner.
As amended, the FCA requires that employers solicit information on all “fair chance factors” and complete a fair chance analysis not only before disqualifying an applicant from employment, but also before taking an adverse action against a current employee (as that term is defined in the Human Rights Law). An employer must conduct a similar, albeit slightly different, analysis when evaluating whether to take an adverse employment action against an applicant or employee because of a pending criminal matter or whether to take an adverse action against a current employee due to a conviction that occurred during their employer. When an employer decides to take an adverse action against either an applicant or employee, they must provide a document, such as the NYCCHR Fair Chance Form, that sets forth the substantive basis for any disqualification decision, and review any responsive information timely submitted by the applicant or employee. Note that the FCA continues to exempt roles subject to laws and regulations which require a prospective employer to conduct a criminal background check (e.g., positions subject to Financial Industry Regulatory Authority, Securities and Exchange Commission, and Department of Transportation regulations).
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. Employers may need to revise job applications and interviewing practices, as well as notices and template forms currently used to ensure compliance with the FCA. 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 FCA’s definition of conditional offer.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
W. John Lee
Christopher K. Ramsey