NYC Fair Chance Act Amendments

January 19th, 2021 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate

On December 10, 2020, the New York City Council passed Int. 1314-A, Prohibiting Discrimination Based on One’s Arrest Record, Pending Criminal Accusations or Criminal Convictions (the “Amendments”) to amend the City’s Fair Chance Act (“FCA”).

The FCA, which took effect in October 2015, incorporates the individualized assessment obligations contained in New York Correction Law Article 23-A into City requirements, and requires employers to complete a written analysis of the Article 23-A factors when considering an adverse employment decision due to criminal history. Additionally, the FCA prohibits employers from inquiring into an individual’s criminal history prior to extending a conditional offer, and outlines the adverse action process the employer must follow to rescind conditional offers.

The Amendments, which take effect 200 days after enaction, expand the FCA in the following ways:

• Requiring employers to apply the Fair Chance process prior to taking an adverse action based on pending arrests or criminal accusations. The assessment that must be conducted for pending offenses includes two deviations from the factors included in Article 23-A:
  1. Instead of considering the length of time since the alleged offense, and the individuals age at the time, the employer must specifically consider whether the individual was 25 years old or younger when the alleged offense was committed
  2. Enhances requirement to consider evidence of rehabilitation and good conduct, by requiring consideration of any additional information produced by the individual or produced on their behalf regarding their rehabilitation, or good conduct including positive performance and conduct in employment or in the community.
• Prohibiting all inquiries and employment decisions related to violations and non-criminal offenses, with exceptions for motor vehicle records
• Clarifying that employers must apply the Fair Chance process to current employees for convictions, pending arrests, or accusations during their employment
• Extending the time required to allow an individual to respond to their analysis during which the position must be left open from three days to five days, consistent with what is generally considered a reasonable amount of time at the federal level
• Clarifying that employers may take adverse action due to an individual’s misrepresentation of their criminal history, provided that the inquiry was lawful, and the individual is provided with supporting documentation and a reasonable amount of time to respond
• Incorporating state-level prohibitions on inquiring about non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or sealed convictions
• Codifying the position taken by the NYC Commission on Human Rights requiring employers to affirmatively solicit information on all FCA factors, and that failure to do so indicates improper application of the Fair Chance process.
• Codifying the rule promulgated by the NYC Commission on Human Rights which states that a conditional offer may only be revoked due to any of the following:
  1. Results of a background check after the Fair Chance process has been followed
  2. Results of a medical exam permitted by the Americans with Disabilities Act
  3. Other information that an employer could not have reasonably known prior to extending the offer, if they can demonstrate that this would cause them to rescind the offer regardless of the results of the criminal background check

New York City employers should review their background screening policies and programs in light of these Amendments and consult with their legal counsel in order to determine their next steps. While no additional updates have been made to the form provided by the NYC Commission on Human Rights, employers need to take into account the specifics of the new laws for the length of time, age of the offender, and rehabilitation.  Sterling clients with questions or interest regarding our Fair Chance service offerings or other compliance-oriented tools should contact their account representative.

The full text of the Amendments can be found here.

The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website:  https://www.sterlingcheck.com/resources/compliance-updates/

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