New York City’s Fair Chance Act took effect last week, amending the New York City Human Rights Law by prohibiting covered employers from asking about criminal history until after a conditional offer of employment has been extended. While it has always been a requirement that NYC employers first consider a set of eight specific factors before rejecting an applicant with a criminal history, employers must now document the analysis they undertook and provide the written analysis to the applicant. The written analysis walks through the eight factors and indicates, among other things, whether the employer believes there is a direct relationship between the applicant’s criminal record and the job, or whether the applicant’s criminal record creates an unreasonable risk to specific people, the general public, or the employer’s property.
In an effort to clarify this requirement, the New York City Commission on Human Rights released a Fair Chance Notice Form (the “Form”). While other states and cities have similar “Ban the Box” legislation prohibiting employers from asking about criminal history until after a conditional offer of employment has been made, New York City is the only city to require the consideration and documentation of a multifactored analysis and the provision of that analysis to the applicant in writing through the use of a specified form. Of note for employers, the Commission will allow some adaptation of the Form to an employer’s preferred format, as long as the material substance is not compromised in any way.
The factors an employer must consider, and which are summarized in the Form, include the following:
- New York public policy encourages the employment of people with criminal records.
- The specific duties and responsibilities of the job.
- The bearing, if any, of the criminal record on the ability to do the job.
- The amount of time that has passed since the events that led to the criminal conviction.
- The applicant’s age when he/she engaged in criminal conduct.
- The seriousness of the conviction record.
- Any favorable information, such as evidence that the applicant attended school, job training, or counseling; had past employment; or is involved with the community. This information can include letters of recommendation from teachers, counselors, supervisors, clergy, and parole or probation officers.
- Importantly, if the applicant has a certificate of relief from disabilities or a certificate of good conduct, an employer must presume the applicant is rehabilitated for his or her convictions.
While the Commission has indicated it will release additional interpretative guidance, including a Q&A document, a reasonable reading of the new legislation, in conjunction with the Form, suggests that NYC employers must send the completed Form, along with the Pre-Adverse Action Notice required by the Fair Credit Reporting Act (FCRA), the Summary of Rights Under the FCRA, and a copy of the background check, to the applicant if the employer is considering revoking its prior conditional offer of employment. The employer must then wait a reasonable amount of time (at least three business days under the NYC law and probably closer to five under the FCRA), while simultaneously holding the job open, to allow the applicant to provide additional information to the employer to consider before making a final decision on the applicant’s employability. If the applicant provides additional information within the specified time frame, the employer must consider the information and update its analysis accordingly. Notably, the updated analysis should then be sent to the applicant, along with the Notification of Adverse Action Form required by the FCRA, if the employer determines the conditional offer should be revoked.