Effective July 29, 2021, New York City’s Commission on Human Rights has expanded its guidance on criminal records and employment for New York City employers after the passage of Local Law 4 of 2021. New York City’s Fair Chance Act has been on the books since 2015, but Local Law 4 of 2021 has expanded the scope of the Act and has placed additional requirements on employers.
Conditional Offer of Employment –
Employers cannot consider criminal records for pre-employment purposes until after a conditional offer of employment has been made. In order to make a conditional offer, employers must first review the applicant’s credentials and may complete a background check of the applicant’s work experience, educational qualifications, licensure or other interviews. Once this portion of the background check has been completed and meets the employer’s requirements, they then may proceed with the criminal records and driving records portions of the background check.
Disclosures and Authorizations for Background Checks –
Employers may not use the words “background check,” “criminal records check,” or similar terms in their disclosures and authorizations for their initial background checks. They may refer to “consumer reports” or “investigative consumer reports” or use language that is specific to what will be requested prior to a contingent background check, including “employment verification,” “reference check,” or “resume authentication,” but they may not include information regarding a criminal record or driving check.
Pre-Adverse Action –
The Fair Chance Notice for Job Applicants has been updated to reflect several changes, including the minimum length of time for the applicant to provide additional mitigating information from three (3) days to five (5) days, and additional wording regarding crimes convicted by applicants under the age of 25.
Other Changes –
The Fair Chance Analysis must be done for any pending charges, and not just convictions, that may cause an employer not to hire an applicant. The Fair Chance Analysis now must also be done for current employees who may be facing disciplinary action or termination due to an arrest or conviction that occurs during employment.
The New York City Human Rights Commission has updated their web page with guidance information for employers and job seekers.
While there are some limited exceptions for certain professions, these changes will affect all New York City employers. We are updating our sample forms to reflect these changes, but we do strongly encourage you to work with your legal counsel to review your forms and processes.
For information on how Hire Image can help with your New York City background checks, please contact our office at Comply@hireimage.com