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. If the applicant credibly demonstrates either that the information provided was not a misrepresentation or that a misrepresentation was unintentional, the employer is required to perform the Fair Chance Analysis before taking adverse action against the applicant. For more information, visit https://www.jacksonlewis.com. 2ndReport:After conditional offer, including drivers records and any criminal information. These civil penalties are in addition to other remedies available under the Fair Chance Act, which may include compensatory damages (e.g., back pay, front pay, emotional distress damages), punitive damages, and attorneys fees, as applicable. Below is a summary of the existing law highlighting the changes set forth by the amendments, which were refined by guidance recently issued by the New York City Commission on Human Rights. [2] Employers cannot consider non-convictions under the FCA. Douglas T. Schwarz. The Commission also has indicated that employers violate the FCA simply by making statements about criminal history or background checks, prior to a conditional offer of employment. As a reminder, employers using a third-party consumer reporting agency must follow the notice of intent to take adverse action/adverse action process required under the federal FCRA. The Guidance explains that there is an exemption for legally-mandated background checks, but points out that even where a background check is required, the employer is still required to follow the Fair Chance Act to the extent it does not conflict with that federal/state/local law. Previous Flipbook. The New York City Council amended New York Citys Fair Chance Act (FCA) to significantly expand the scope of protections for applicants and employees with criminal charges or arrests. So, driving abstracts should also not be requested or at least not reviewed until after the conditional offer has been extended. Copyright 2023 Morgan, Lewis & Bockius LLP. In effect, the Commission appears to suggest that employers may have to use two disclosure and/or authorization forms to advise applicants of the scope of the inquiry during this two-step process. For purposes of analyzing criminal information, the Guidance provides the list of specific Article 23-A factors that employers should use in considering conviction history, as well as the list of specific factors employers should use when considering pending cases. Employers should evaluate their background check forms and processes in light of the Guidance. The Commissions Notice may be downloaded from the Commissions website. New York State public policy, encouraging licensure and employment of persons previously convicted of one or more criminal offenses. Littler Investigation Toolkit for Employers, Littler Inclusion, Equity and Diversity Playbook, Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination, https://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf, Hiring, Performance Management and Termination, New York City Expands Scope of its Ban-the-Box Law, The Dust Hasnt Settled Yet: Employers Must Continue to Be Thoughtful About Criminal Record Screening Policies, Illinois Imposes New Criminal History Check Requirements on Employers, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions. 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 Commission also recommends that the results of any inquiry into an applicants/employees criminal history should be maintained separately, and only people involved in making decisions about the applicant/employee should have access to that information. Determine whether vendors engaged to conduct pre-employment screenings are aware of (and in compliance with) the new recommendation to bifurcate the background check process; evaluate whether there may be new costs associated with compliant background checks. and the New York State Fair Credit Reporting Act (NY GBL 380 et seq. New York City Enacts Ban-the-Box Legislation, New York City Human Rights Commission Fair Chance Act Fact Sheet Offers Compliance Guidance, New York City Council Amends New York City Fair Chance Act, Initial Ripple Effects of U.S. Supreme Court Affirmative Action in Student Admissions Decision, U.S. Supreme Court Rules on Narrow Jurisdictional Question in Fractured Opinion, Retail Industry Workplace Law Update Summer 2023, Employers can only request and review criminal history information after favorably evaluating the candidates non-criminal information. Seyfarth Synopsis: The New York City Commission on Human Rights released its Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination on the Basis of Criminal History (the Guidance) on July 15, 2021. The Commission recognizes that it is often impracticable to separate criminal and non-criminal information contained in a driving abstract or motor vehicle report. Non-criminal History Background Checks Must Be Completed and Cleared Before Criminal History May Be Considered. 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 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. fair-chance-law - NYC.gov 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. Among other things, the amendments expand employment protections for individuals with certain criminal histories by adding to the list of information that employers are prohibited from considering, adding additional steps and procedures that employers must take when presented with certain criminal information, and clarifying certain timing, as well as other obligations and requirements, that are part of the Fair Chance Process. We cannot become your lawyers or represent you in any way unless (1) we know that doing so would not create a conflict of interest with any of the clients we represent, and (2) satisfactory arrangements have been made with us for representation. An employer can disqualify an applicant based on an intentional misrepresentation about the applicants conviction history or pending case. The Guidance explains that the Commission vigorously enforces the Fair Chance Act, and civil penalties are based on (1) the severity of the particular violation; (2) the existence of previous or contemporaneous violations; (3) the employers size, considering both the total number of employees (e.g., 4-9 employees, 10-20 employees, 21-50 employees, 50+ employees) and revenue; and (4) whether or not the employer knew or should have known about the law. The FCA, as amended, now explicitly states that a conditional offer of employment may only be rescinded based on: The Guidance makes clear that these narrow grounds for rescission of a conditional offer require employers that review an applicants criminal history before making a final offer of employment to implement a two-tiered screening process, wherein 1) all non-criminal pre-employment screenings, such as a review of the applicants employment and educational history, must be completed and passed by the applicant before a conditional offer of employment is made; and thereafter 2) employers may, after a conditional offer of employment, request and review the applicants criminal history, which may only be considered in compliance with the individualized assessment, notice and consideration requirements of the FCA. Prohibited Inquiries and Information That Cannot Be Considered By Employers. 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. As such, employers should revisit how they are viewing pending criminal records. Massachusetts - Information Concerning the Process for Correcting a Criminal Record. Cases that resulted in a conviction for a non-criminal offense under the laws of another state. Seyfarth Synopsis: The New York Citys Fair Chance Act amendments are scheduled to go into effect on July 29, 2021, after bill Introduction No. What bearing, if any, the criminal offense(s) for which the person was previously convicted will have on the persons fitness or ability to perform any of the jobs duties or responsibilities. 26, 2021). 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. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. Any additional information produced by the person, or produced on their behalf, in regards to their rehabilitation or good conduct (e.g., history of positive performance and conduct on the job or in the community, or any other evidence of good conduct). 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. This may include creating a new communication for obtaining authorization to perform the first part of the Bifurcated Screening Process in order to obtain Other Background Information. Any information regarding the persons rehabilitation or good conduct. On November 8, 2016, Arizona voters will decide on the Minimum Wage and Paid Time Off Initiative, known as Proposition 206. 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. Were ready for your tomorrow because were built for it. Notably, because (according to the Commission) a conditional offer can only be revoked based on criminal history or an ADA-compliant medical examination, an employer seeking to disqualify an applicant post-conditional offer based on non-criminal information will have to prove that: (1) it could not have reasonable known the information before the conditional offer; and (2) regardless of the results of the criminal background check, the employer would not have made the offer if it had known the non-criminal information before the offer was extended. 1st Report: Pre-offer, includes all non-criminal informationi.e., Other Background Information. 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. Among other requirements, the FCA prohibits employers from inquiring about or making statements concerning criminal history, prior to a conditional offer of employment, including the following: *Recently, the New York City Commission on Human Rights opined that the FCA applies to current employees (presumably when they are applying for a new position at the employer), though the FCA language does not appear to cover current employees. It further requires employers who wish to withdraw a conditional offer of employment to balance numerous factors (FCA Factors) as part of the Fair Chance Process, which analyzes the job-relatedness of the applicants conviction. The amendments expand this protection to prohibit any inquiry in writing or otherwise about any arrest or criminal accusation. NYC Fair Chance Act Amended Extending Criminal Histories Protections Admin. On July 15, 2021, the New York City Commission on Human Rights (the NYCCHR or Commission) issued its highly anticipated updated Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination. In such instances, the employer has to provide the individual with a copy of the document(s) that formed the basis for the determination that an intentional misrepresentation was made and give the person a reasonable time to respond. All rights reserved. This is referred to as the fair chance analysis. The Commission has promised additional guidance is coming soon, after which there will be a formal rulemaking process. Employers Cannot Consider Or Ask About Non-Convictions. Fair Chance Evaluation Form ______________________________________________ Applicant Name After extending a conditional offer of employment, we checked your criminal record. It further notes that if an applicant has both a conviction history and a pending charge, the employer must separately analyze each according to the relevant factors required by the law. Review their background check program policies, procedures and standard operating procedures for compliance with the amendments to the FCA. See here and here for additional information about the SCDEA and the exemptions thereunder. 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. Two of the most significant changes taking effect July 29 are the required application of the FCA review, notice and consideration process both to an employers consideration of open, pending criminal arrests and charges of applicants, and to consideration of the criminal convictions of current employees.6The Guidance clarifies the NYC Fair Chance Factors to be applied when considering pending charges against a job applicant and pending charges or convictions against a current employee, and the Commission has posted a modified FCA Notice to account for these additional scenarios.7The NYC Fair Chance Factors to be applied when considering pending criminal charges of applicants or employees, or convictions of current employees, which are a modified version of the N.Y. Accordingly, please do not send us any information about any matter that may involve you unless we have agreed that we will be your lawyers and represent your interests and you have received a letter from us to that effect (called an engagement letter). All Rights Reserved. This documented analysis must be provided to the applicant in a manner to be determined by the [C]ommission before an employer takes adverse action against the applicant. Additionally, the Guidance addresses how employers should handle review of an applicants driving or motor vehicle record. 2023 Seyfarth Shaw LLP. 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. For the amount of time that has passed and the applicants age elements, the Notice defines the relevant date as the one on which criminal activity occurreda potentially earlier date than New York state Article 23-As more general approach, which has been interpreted as the date of either the criminal activity or the conviction. [10] The federal Fair Credit Reporting Act (FCRA) (15 USC 1681 et seq.) Based on the . 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.

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