The New York City Commission on Human Rights ("NYCCHR") has published proposed amendments to the Fair Chance Act ("FCA"), which prohibits unlawful discrimination on the basis of criminal history against job applicants and employees. The NYCCHR is accepting comments on the proposed amendments that will culminate in a hearing to be held on March 21, 2016.
The proposed rule would include the following substantive amendments to the FCA:
- Establish definitions for: "Applicant," "Adverse Employment Action," "Article 23-A Analysis," "Article 23-A Factors," "Business Day," "Conditional Offer of Employment," "Conviction History," "Criminal Background Check," "Criminal History," "Direct Relationship," "Domestic Relationship," "Domestic Partners," "Fair Chance Process," "Human Rights Law," "Inquiry," "Licensing Agency," "Non-Convictions," "Per Se," "Statement," "Temporary Help Firms," and "Terms and Conditions."
- Establish per se violations of the FCA, and create a discretionary mechanism for the NYCCHR to resolve commission-initiated charges of per se violations under the FCA by offering eligible respondents an option for expedited resolution called "Early Resolution," which allows respondents to bypass a full investigation and hearting at the Office of Administrative Trials and Hearings ("OATH") by admitting liability and complying with a penalty.
- Clarify the types of questions and statements relating to criminal history that are prohibited under the FCA.
- Explain the meaning of a "conditional offer" and establish the limited circumstances and procedures for revoking a conditional offer.
- Explain what an employer should do if they inadvertently learn about an applicant's criminal history prior to making a conditional offer.
- Establish clear guidelines for employers when considering whether and how applicants and employee's criminal convictions or pending cases relate to the duties of a prospective or current job or would pose an unreasonable risk to the property or the safety or welfare of specific individuals or the general public.
- Require an employer to consider any documentation that the applicant or employee presents to support their assertion that the information on the background check contains an error and clarify how an employer must evaluate an applicant or employee's request for more time to explain their conviction history or pending case.
- Clarify the exceptions under the FCA.
- Clarify that employers may not request information or inquire about the non-convictions of applicants or employees and may not deny or take any adverse actions against applicants or employees based on non-convictions.
- Clarify that the FCA protects individuals with pending cases.
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