New York City Amends Fair Chance Act (FCA) Dealing with Criminal Records

Regulations

Written By ESR News Blog Editor Thomas Ahearn

The New York City Council has amended the Fair Chance Act (FCA) that prohibits most employers in the “Big Apple” from inquiring into the criminal records of job applicants until after a conditional job offer to expand employment protections. The amendments became law on January 10, 2021, and take effect on July 29, 2021.

The New York City Council revised the FCA – which was enacted in 2015 to prohibit discrimination based on arrest records or criminal convictions – to identify the specific circumstances upon which an employer can withdraw a conditional offer of employment. An employer can only revoke an offer based on one of three factors:

  • The results of a criminal background check after the FCA process has been followed,
  • The results of a medical exam permitted by the American with Disabilities Act (ADA), or
  • Other information [that] the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.

The amended FCA requires that employers who revoke a conditional job offer demonstrate that they would not have made the offer regardless of the applicant’s criminal history. The revised Act also provides numerous additional protections for ex-offenders, including factors of the New York Corrections Law, Article 23-A.

The amendments extend employment protections for individuals with pending adjournments in contemplation of dismissal (ACDs) and convictions for violations prior to sealing by adding unsealed violations and ACDs to the category of dispositions that may never be considered for the purpose of making employment-related decisions.

They also prohibit discrimination in licensing against applicants with convictions for violations, even prior to sealing, and clarify protections for applicants and employees with pending criminal cases by requiring an employer to make an individualized assessment of the relationship between the charged conduct and the job.

“Ban the Box” laws and Second Chance Programs that help ex-offenders in the United States – an estimated 70 million people – find work will continue to evolve, according to leading global background check firm Employment Screening Resources® (ESR), which compiled the “ESR Top Ten Background Check Trends” for 2021.

Employment Screening Resources® (ESR) – which was named the #1 screening firm in 2020 by HRO Today – offers a white paper on “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce,” an “ESR Ban the Box Resource Guide,” and a Ban the Box Resource Page. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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