Fair Chance Act Rules from New York City Commission on Human Rights Take Effect August 5

Written By ESR News Blog Editor Thomas Ahearn

The New York City Commission on Human Rights (NYCCHR) – which enforces New York City Human Rights Law (NYCHRL) – has amended rules to establish definitions and procedures applying to the Fair Chance Act (FCA) that took effect in October of 2015 to amend the NYCHRL provisions regarding unlawful discrimination on the basis of criminal history against job applicants and employees, and applicants for licenses, registrations, and permits. The rules take effect August 5, 2017.

The New York City FCA rules establish definitions for “Applicant,” “Adverse Employment Action,” “Article 23-A Analysis,” “Article 23-A Factors,” “Business Day,” “Conditional Offer of Employment,” “Conviction History,” “Criminal Background Check,” “Criminal History,” “Direct Relationship,” “Domestic Partners,” “Fair Chance Process,” “Human Rights Law,” “Inquiry,” “Licensing Agency,” “Non-Convictions,” “Per Se Violation,” “Statement,” “Temporary Help Firms,” and “Terms and Conditions.” The rules also:

• Establish per se violations, as defined by these rules, of the new provisions added to the Human Rights Law by the FCA.
• Clarify the types of questions and statements relating to criminal history that are prohibited by the FCA.
• Explain the meaning of a conditional offer and establishes the limited circumstances under which an employer can revoke a conditional offer.
• Explain what an employer should do if they inadvertently learn about an applicant’s criminal history prior to making a conditional offer.
• Clarify the procedure that an employer must follow upon learning of an applicant’s or employee’s criminal history and what steps must be taken before revoking a conditional offer or taking an adverse employment action.
• Establish clear guidelines that employers must follow when considering whether and how applicants’ and employees’ criminal convictions relate to the duties of a prospective or current job or would pose an unreasonable risk to the property or the safety or welfare of specific individuals or the general public.
• Establish what information an employer must provide to an applicant if a determination is made to revoke a conditional offer based on a conviction, and clarifies how an employer must evaluate an applicant’s request for more time.
• Require an employer to consider any documentation that the applicant presents to support their assertion that the information on the background check contains an error.
• Clarify exemptions to the FCA.
• Create a discretionary mechanism for the Commission to respond to per se violations of the FCA by allowing the Commission’s Law Enforcement Bureau (“LEB”) to send employers or licensing agencies an Early Resolution Notice.
• Clarify that employers may not request information or inquire about the nonconvictions of applicants or employees and may not deny or take any adverse employment action against applicants or employees based on non-convictions.
• Update the rule’s definition of “domestic partners” to reflect the definition contained in the Administrative Code.

As reported previously by ESR News, the FCA – which the New York City Council passed in June 2015 – took effect October 27, 2015, to prohibit employers in the city from conducting criminal background checks or inquiring about arrest or conviction records, inquiring about criminal history on employment applications or during interviews, or advertising or soliciting job offers with requirements regarding the arrest or conviction history of job applicants until they receive a conditional offer of employment.

After a conditional offer of employment is extended, the FCA allows New York employers to conduct criminal background checks provided they comply with certain procedures before taking adverse action: 1) provide a copy of the report to the applicant, 2) perform an analysis of the applicant applicants under Article 23-A of the New York Correction Law and provide a written copy to the applicant, and 3) hold the position open at least three business days to allow the applicant time to respond.

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