In addition to all of the challenges employers are currently facing, New York City employers must now also prepare themselves for some recent amendments to New York City’s Fair Chance Act (“FCA”).
Since 2015, the FCA has prohibited employers from certain activities with regard to a candidate’s criminal history, including inquiring into that criminal history until after a conditional offer of employment was made. Recently, the New York City Council made revisions to the FCA to significantly expand protections for applicants and employees with criminal backgrounds, including convictions, charges, and arrests. The FCA amendments go into effect on July 29, 2021.
Below are some notable ways the FCA Amendments will impact employers:
- Employers cannot withdraw a conditional offer of employment or take an adverse employment action unless:
- there is a direct relationship between the alleged wrongdoing that is the subject of a pending arrest or criminal accusation and the employment sought or held; or
- the granting or continuation of the employment would involve an unreasonable risk to property, safety, or welfare of specific individuals or the general public.
- Under current law, a conditional offer may be withdrawn if there is a “relationship between a prior conviction and the job being sought.”
- Employers must conduct individualized assessments with “relevant fair chance factors” they must consider if they wish to take adverse action against an applicant or employee due to a pending arrest, criminal accusation, or conviction.
- Employers must now request information from the candidate for each criminal assessment factor established by New York Corrections Law (Article 23-A).
- Employers must now provide five business days (instead of three) for candidates to respond to the employer’s Article 23-A assessment before taking adverse action.
- Employers may not make any inquiries or deny employment on the basis of non-criminal offenses.
- If a current employee is convicted of a criminal charge, he or she is now afforded the same review and assessment process as an applicant. There can be no adverse action against the employee unless the employer determines after reviewing the “relevant fair chance factors,” that there is a direct relationship between the conviction and the employment or that continuing employment would involve an unreasonable risk to property or the safety or welfare of individuals or the general public.
- This previously applied only to job applicants.
- Employers may not make any inquiries or deny employment on the basis of non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, and sealed convictions.
- Independent contractors and freelancers are now also covered under the FCA.
- Employers may take adverse action, following the necessary steps (provide the applicant with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and give the applicant a “reasonable” time to respond), against an applicant or employee who made misrepresentations about an arrest or conviction.
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At Hire Image, we understand ongoing compliance in the face of constantly shifting laws and regulations. Please contact us if you need any assistance in reviewing your policies and procedures. For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.