United States: New York City Issues Enforcement Guidance And A Revised Fair Chance Act Form

On November 5, 2015, the New York City Commission on Human Rights released its long awaited Enforcement Guidance governing the New York City Fair Chance Act, which makes it unlawful to request or consider an applicant's criminal background prior to a conditional offer of employment.  (See our prior blog posts here, here, and here).   

The NYCCHR's Interpretive Enforcement Guidance is available here.  The NYCCHR also made available a revised Fair Chance Act Notice Form, which should be distributed to applicants in the event an employer is considering revoking a conditional offer of employment as a result of the applicant's criminal background check.  The revised form -- which we believe may have been modified to address some of the questions and concerns that arose after the NYCCHR released its original version of the form -- may be found here.

Compliance with the Fair Chance Act for Private Employers

A.        Per Se Violations of the Fair Chance Act

Employers should take note that the NYCCHR's Interpretive Enforcement Guidance expands on the statutory language of the Fair Chance Act, and determines that certain acts will be deemed "per se" violations of the Fair Chance Act, including:

-- Declaring, printing, or circulating any solicitation, advertisement, or publication for employment (including employment applications, fliers, handouts, online job postings, and materials distributed at employment fairs) that state any limitation or specification regarding criminal history, even if no adverse action follows. This includes advertisements and employment applications containing phrases such as: "no felonies," "background check required," and "must have clean record."

-- Making any statement or inquiry into criminal history, even if no adverse action follows.  Consequently, employers cannot ask about or discuss criminal history during the interview process. Based on the definition of a "statement" under the Act, this prohibition may be applied to bar employers from distributing a Fair Credit Reporting Act Disclosure and Acknowledgment Form authorizing a background check prior to a conditional offer of employment.

-- Taking an adverse employment action because of an applicant's non-conviction.

-- Withdrawing a conditional offer of employment based on an applicant's criminal history before completing the "Fair Chance Process" (see our post on best practices for compliance, here, for more detail). The "Fair Chance Process" requires:

1) Providing the applicant a copy of the employer's inquiry into his or her criminal history (i.e. a copy of the consumer report or any other information relied upon by the employer);

2) Providing the applicant a written copy of the employer's Article 23-A analysis (i.e. the Fair Chance Act Notice Form, available here);

3)  Holding the prospective position open for at least three (3) business days from the applicant's receipt of the above documents.

Notably, "[e]mployers may therefore wish to confirm receipt, either by disclosing the information in person, electronically, or by registered mail."  The Commission, however, states that "[s]uch method of communication must be mutually agreed on in advance by the applicant and employer."  Employers, consequently, may need to revisit and revise their disclosure and authorization forms to ensure that the applicant authorized the chosen method of communication.

B.        Post-Conditional Offer Inquiries

Once an employer extends a conditional offer of employment, all permissible inquiries into an applicant's criminal history may be explored.  For employers that choose to pose a written question to the applicant (in addition to conducting a background check), the NYCCHR's guidance warns that it is never permissible to inquire about a non-conviction.  To avoid this risk, the NYCCHR condones the following language for a post-conditional offer inquiry:

Have you ever been convicted of a misdemeanor or felony? Answer "NO" if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as "disorderly conduct;" (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.

C.        The Fair Chance Act Form and Consideration of Article 23-A Factors

The NYCCHR's guidance also expands upon what the Commission considers appropriate consideration of the Article 23-A factors in determining whether to revoke a conditional offer of employment. 

Article 23-A permits an employer to withdraw a conditional offer of employment if (1) there is a direct relationship between the applicant's criminal record and the prospective job; or (2) the applicant's employment "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

The enforcement guidance, however, places the burden on the employer to demonstrate the applicant meets at least one of these two exceptions to Article 23-A in order to withdraw the conditional offer because of the applicant's criminal record. The Commission warns that "[a]n employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction record.  The employer must evaluate the Article 23-A factors using the applicant's specific information before reaching either conclusion."  Specifically, the Commission states that:

-- In order for an employer to claim the direct relationship exception, "an employer must first draw some connection between the nature of conduct that led to the conviction(s) and the potential position.  If a direct relationship exists, an employer must evaluate the Article 23-A factors to determine whether the concerns presented by the relationship have been mitigated."

-- Likewise, in order for an employer to claim the unreasonable risk exception, "an employer must begin by assuming that no risk exists and then show how the Article 23-A factors combine to create an unreasonable risk. Otherwise, this exception would cover all convictions not directly related."

The Commission intends to "review private employers' adverse employment decisions to ensure that they correctly consider the Article 23-A factors and properly apply the exceptions."  In so doing, the Commission states that: "Employers must evaluate each Article 23-A factor; they cannot ignore evidence favorable to the applicant; and they cannot disproportionately weigh any one factor over another. Employers should consider applicants' successful performance of their job duties in past employment, along with evidence that they have addressed the causes of their criminal activity."  It remains to be seen how the Commission's intent to act as a super-personnel department in reviewing private employer's decisions with respect to these positions will be reconciled with long standing case law affirming that such personnel decisions are not to be second-guessed by judicial review.  In the meantime, employers should consider whether their process for completing the Fair Chance Act Notice form takes the Commission's guidance into account.

Indeed, the NYCCHR has issued a few additional tips for completing (or modifying) the Fair Chance Act Notice form, namely:

-- That "[t]he Notice requires employers to evaluate each Article 23-A factor and choose which exception – direct relationship or unreasonable risk – the employer relies on."

-- That "[t]he Notice also contains space for the employer to articulate its conclusion."

-- That "Boilerplate denials that simply list the Article 23-A factors violate the FCA. For example, an employer cannot simply say it considered the time since conviction; it must identify the years and/or months since the conviction. An employer also cannot list specific facts for each factor but then fail to describe how it concluded that the applicant's record met either the direct relationship or unreasonable risk exceptions to Article 23-A."

-- And, that "the Notice informs the applicant of her or his time to respond and requests evidence of rehabilitation and good conduct. The Notice provides examples of such information. Employers may identify specific examples of rehabilitation and good conduct that would be most relevant to the prospective position, but examples must be included."

D.        Exemptions and Exemption Log

The NYCCHR acknowledges that employers are exempt from the Fair Chance Act when hiring for certain positions where federal, state, or local laws require criminal background checks or bar employment based on certain criminal convictions.  These exemptions only apply where the criminal history is a mandatory -- not discretionary -- bar to a license or employment.  For example, mandatory exemptions extend to:

-- Employers regulated by the state Department of Health ("DOH"), Office of Mental Health ("OMH"), and Office of People with Developmental Disabilities ("OPWDD");

-- Employers in the financial services industry, but only when complying with industry-specific rules and regulations promulgated by a self-regulatory organization ("SRO") for the hiring of certain positions (not all positions within the financial services firm);

-- Employers hiring police and peace officers; and

-- the New York City Police Department, Fire Department, Department of Correction, Department of Investigation, Department of Probation, the Division of Youth and Community Development, the Business Integrity Commission, and the District Attorneys' offices in each borough.

Notably, the Commission states that where a position requires a license or approval by a government agency, the Fair Chance Act still applies, even if the license has mandatory barriers.  The Commission advises such employers to "only ask whether an applicant has the required license or can obtain one within an acceptable period of time," and not to ask about a criminal record prior to a conditional offer of employment.  If the applicant is then unable to obtain a license as a result of his or her criminal history, the conditional offer may be rescinded.

Employers who do not follow the Fair Chance Act because they believe an exemption applies must be able to show that the position falls within one of the exemptions.  If an exemption applies, employers should:

-- inform applicants of the exemption they believe applies;

-- keep a record of their use of such exemptions for a period of five (5) years from the date an exemption is used;

-- keep an exemption log that may be provided to the commission, including: (a) the exemption(s) claimed; (b) how the position fits into the exemption and, if applicable, the federal, state, or local law or rule allowing the exemption; (c) a copy of any inquiry, along with the name of the employee who made it; (d) a copy of the employer's Article 23-A analysis and the name of any employees who participated in it; and (e) the final employment action that was taken based on the applicant's criminal history; and

 -- maintain, separately and confidentially, the results of any inquiry into an applicant's criminal history.

Compliance with the Fair Chance Act for Consumer Reporting Agencies

The Fair Chance Act certainly imposes burdens on private employers who make hiring decisions. For the first time, however, the NYCCHR's Enforcement Guidance imposes additional credentialing obligations on consumer reporting agencies (CRAs) who process consumer reports for New York City applicants. 

Specifically, the guidance states: "Because CRAs can be held liable for aiding and abetting discrimination under the NYCHRL, they should ensure that their customers only request criminal background reports after a conditional offer of employment."

CRAs would be well advised to revisit their credentialing criteria and end-user certification process to ensure their customers are complying with the Fair Chance Act to avoid aiding and abetting liability.

Compliance with the Fair Chance Act with Respect to Contractors.

The Commission has taken the position that employers who uses contractors, even though they are not employees, must still go through the Fair Chance Process if inquiring into the contractors' criminal history or withdrawing an assignment based on that history. 

With respect to temporary help firms or staffing agencies, the Commission has stated that "the FCA applies the same way to temporary help firms as it does to any other employer. The only difference is that, for these firms, a conditional offer of employment is an offer to place an applicant in the firm's labor pool, from which the applicant may be sent on job assignments to the firm's clients."  Before withdrawing a conditional offer of employment after discovering an applicant's conviction history, such staffing agencies must follow the Fair Chance Process.  The Commission has cautioned that temporary help firms may be liable if they aid and abet an employer's discriminatory hiring preferences.

Enforcement

The NYCCHR intends to "vigorously enforce" the Fair Chance Act, including the use of civil penalties.  The Commission did not specify the amount of civil penalties that may be applied for a violation of this law, but states that the amount will be determined by the following factors:

  • The severity of the particular violation;
  • The existence of additional previous or contemporaneous violations;
  • The employer's size, considering both the total number of employees and its revenue; and
  • Whether or not the employer knew or should have known about the Fair Chance Act.

Civil penalties supplement the penalties available under the NYCHRL, including front and back pay, compensatory damages, punitive damages and attorneys' fees and costs.   

In enforcing this law, the Commission explains that there will be a rebuttable presumption that an employer was motivated by an applicant's criminal record if it revokes a conditional offer of employment.  Additionally, the Commission will presume that any reason known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer.

Finally, the Commission cautions that the NYCHRL will continue to be broadly enforced in accordance with the 2005 Civil Rights Restoration Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.