Compliance with New York City’s Fair Chance Act is no simple matter. On November 5, 2015, the NYC Commission on Human Rights updated its Interpretive Enforcement Guide to explain how employers must go about complying with the Fair Chance Act (“FCA”). In a nutshell, you should treat your FCA compliance like you treat your I-9 compliance: designate a person in your human resources department to be the individual responsible for understanding and complying with the law.
This is what the FCA makes illegal:
- To deny employment because of an arrest or criminal accusation unless such denial is compliant with the terms of an Executive Order on Human Rights;
- To ask about any arrest or criminal accusation unless such inquiry is compliant with the Executive Order;
- To declare in your solicitations, advertisements, or publications that you will not employ arrestees or convicts;
- To ask about a pending arrest or a criminal conviction before a conditional offer of employment is made;
- To deny the applicant the Fair Chance Process; or
- To fill the position with someone else before the Process has concluded.
It is this Fair Chance Process that will likely prompt employers to designate an FCA compliance person, as it is a rather complex, detailed procedure that ought to be strictly followed. In summary fashion, these are the steps to be taken in the Fair Chance Process:
- Extend a conditional offer of employment.
- Inquire about arrest or conviction record:
- The inquiry may be an oral or written interview of the applicant;
- It may be by purchasing a background check; or
- It may be by conducting your own investigation on the Internet or by other means.
- Before taking adverse action do the following:
- Perform the Article 23-A analysis;
- Provide a written copy of the analysis to the applicant, along with all supporting documentation, such as notes of an interview, the consumer report, or the Internet pages viewed;
- You may use the Form prepared by the NYC Human Rights Commission, if you wish.
- Allow the applicant at least three days to respond:
- The clock does not start running until the applicant has actually received the analysis;
- Using certified U.S. Mail, return receipt requested, or hand delivery are optimal methods; and
- Email may be used, but only if previously agreed to by the employer and applicant.
Article 23-A analysis requires the employer to establish one of two things before it may revoke the offer of employment. It must either:
- Establish a direct relationship between the applicant’s criminal record and the prospective job; or
- Show that employing the applicant would involve an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public.
This analysis under Article 23-A cannot be boilerplate:
- To establish a “direct relationship,” you must draw a connection between the nature of the conduct that led to the conviction and the potential position, and if such a connection exists, you must then determine whether mitigating factors overcome this connection. Mitigating factors can include the lapse of time between the conviction and the job application, the age of the applicant at the time the crime was committed, and evidence of subsequent good conduct.
- To establish an “unreasonable risk,” you must begin by assuming no risk exists and then show how Article 23-A factors demonstrate true unreasonable risk.
The NYC Human Rights Commission says that employers cannot conduct this Article 23-A analysis if they have not already defined the position’s job duties and responsibilities. Moreover, they cannot change the duties and responsibilities once they have extended a conditional offer of employment.
As is the case with many of these “ban-the-box” laws, there are exceptions. Notable ones include:
- Law enforcement;
- Employers who must conduct background checks under federal or state law;
- Positions the Human Rights Commissioner determines involve law enforcement, are susceptible to bribery or other corruption or entail the provision of services to or safeguarding of persons who are vulnerable to abuse.
An employer should keep records of their use of exemptions for at least five years. Consult the Interpretive Guide for further guidance on how you need to keep your records.
As you can see, complying with this new law is no simple matter. Those employing people in the city are well-advised to designate a compliance person to oversee adherence to New York City’s Fair Chance Act Process.
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