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Employment Law Client Alert: New York City Issues Fair Chance Act Guidance

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Effective October 27, 2015, The Fair Chance Act (“FCA”),  amends the New York City Human Rights Law by making it an unlawful discriminatory practice for most New York City employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. If a New York City employer wishes to withdraw its offer, it must give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.  According to the Legislative intent behind the FCA, “[T]he FCA reflects the City’s view that job seekers must be judged on their merits before their mistakes. The FCA is intended to level the playing field so that New Yorkers who are part of the approximately 70 million adults residing in the United States who have been arrested or convicted of a crime can be considered for a position among other equally qualified candidates.”

Even though New York Correction Law Article 23-A (“Article 23-A”) has long protected people with criminal records from employment discrimination, the City determined that such discrimination still occurred when applicants were asked about their records before completing the hiring process because many employers were not weighing the factors laid out in Article 23-A.5 For that reason, the FCA prohibits any discussion or consideration of an applicant’s criminal history until after a conditional offer of employment. Certain positions are exempt from the FCA: employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions, employers required by a self-regulatory organization to conduct a criminal background check of regulated persons, Police and Peace Officers, law enforcement agencies, and other exempted city agencies, of City positions designated by the Department of Citywide Administrative Services as exempt.

While the FCA does not require employers to hire candidates whose convictions are directly related to a job or pose an unreasonable risk, it ensures that individuals with criminal histories are considered based on their qualifications before their conviction histories. If an employer is interested enough to offer someone a job, it can more carefully consider whether or not that person’s criminal history makes her or him unsuitable for the position. If the employer wishes to nevertheless withdraw its offer, it must first give the applicant a meaningful opportunity to respond before finalizing its decision.

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