Nicole Kaganovsky

The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment, public accommodations and housing. Employers often have questions surrounding the NYCHRL and the legality of requiring a background check, conducting an inquiry into the applicant’s criminal record, or denying a job due to a criminal conviction history.

A new city law called the Fair Chance Act, which amends the NYCHRL, went into effect on October 27, 2015. The primary goal of the law is to have employers consider job applicants based on their skills, experience and qualifications before weighing their conviction history. The intention is to create a larger pool of candidates with a broader set of skills and expertise for each position, and to give people who are qualified to work, but have a criminal record, a chance to build their career.  

All employers with four or more employees must obey the Fair Chance Act when hiring, firing, promoting, or demoting employees. Police officers and peace officers, along with certain law enforcement and city agencies are exempt from the law. Job positions that require criminal background checks due to federal, state or local law are also amongst the exemptions of the Fair Chance Act.  

According to the Fair Chance Act, job postings, advertisements, and applications cannot have any reference to arrest or conviction history. Inquiries regarding an applicant’s criminal record or a request for permission to run a background check are not allowed. Phrases such as “background check required,” “must have clean record” or “no felonies” cannot be used. In addition, the hiring company cannot perform a background check, or inquire orally or in writing, as to whether the applicant has a criminal record prior to extending a conditional offer.

If a job applicant’s criminal record is identified subsequent to the conditional job offer and the employer decides to take adverse action, then the following must be completed:

  • The employer must provide the applicant with supporting documentation that determined the applicant has a criminal record. Examples consist of the background check report, pages relied on from the Internet and searches of publicly available records.

 

  • An evaluation of the applicant must be performed under the New York Correction Law Article 23-A and a written analysis of the reasons for taking adverse action and denying employment to an applicant. The analysis must demonstrate that there is either a correlation between the applicant’s criminal record and his or her prospective job duties, or that there is an unreasonable risk presented due to the applicant’s criminal record. If an employer alleges that there is a direct link between the applicant’s conduct and the potential job, an employer must evaluate the Article 23-A factors to determine whether the issues that arose as a result of the relationship have been mitigated. If an employer alleges that the job applicant presents an unreasonable risk, the employer must show how the Article 23-A factors combine to create an unreasonable risk.

 

  • The job opportunity must be kept open for at least three business days after the applicant receives the documents and analysis.

The following Article 23-A factors concerning a previous criminal conviction should be considered:  

  • New York’s public policy and whether it encourages the licensure and employment of people with criminal records.
  • The prospective job duties and responsibilities.
  • The effect, if any, of the person’s criminal history on his or her capability to perform the job.
  • The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction and the applicant’s age at the time.
  • The seriousness of the applicant’s criminal record history.
  • Any insight provided by the applicant, or on his or her behalf, regarding rehabilitation or good behavior.
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

It is important to keep in mind that if an applicant misrepresents his or her criminal history and if the applicant is unable to show that a discrepancy between the information s/he disclosed and the employer’s background report exists because of an error, the employer may decide not to hire the applicant and is not required to conduct an Article 23-A analysis before making such a decision.

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