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New York City Has Strict Rules on Background Checks: Employers Beware!

The Fair Chance Act (“FCA”) makes it illegal for most employers in New York City to ask job applicants about their criminal record before making a job offer. For employers, this means ads, applications, and interview questions cannot include inquiries into an applicant’s criminal record. 

Under the FCA employers must initially focus on the applicant’s qualifications. After a conditional offer of employment is made, the employer can make the same inquiries into the applicant’s criminal history it could before the FCA.  A conditional offer is one that can only be revoked based on (1) the results of a criminal background check; (2) the results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act; or (3) the employer  discovers new material information it could not have reasonably known before the conditional offer, which, if the employer had known, would have caused the employer not to make the conditional offer. 

Under the FCA, an employer cannot deny employment unless it can (1) draw a direct relationship between the applicant’s criminal record and the prospective job or (2) show employing the applicant would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. If the employer wishes to decline employment to the applicant for these reasons, it must follow the “Fair Chance Process.” This involves (1) disclosing to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history; (2) sharing with the applicant a written copy of its FCA analysis; and (3) allowing the applicant at least three business days, from receipt of the employer’s inquiry and analysis to respond to the employer’s concern.

Guidance for the FCA sets forth the following per se violations:

  1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows; This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record;”
  2. Making any statement or inquiry regarding criminal history, before making a conditional offer of employment, even if no adverse action follows;
  3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process;
  4. Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;
  5. Failing to share with the applicant a written copy of the employer’s FCA analysis;
  6. Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond;
  7. Taking an adverse employment action because of an applicant’s non-conviction, i.e., the arrest.

The New York City Commission on Human Rights has the authority to enforce the FCA and impose penalties on non-complying employers. Employers should review their hiring practices including applications, job postings, and interview questions to ensure they do not make an improper inquiry under the FCA.

Brody and Associates regularly provides counsel on background check issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.