United States: Everything Else You Need to Know About New York City's FCA—New Rules Effective August 5, 2017

New York City has issued new rules interpreting the city's Fair Chance Act (FCA). These rules, which went into effect on August 5, 2017, provide clarification and guidance on how employers can comply with the requirements of the FCA, the city's restrictive "ban the box" law which prohibits (with few exceptions) employers from inquiring about or considering an individual's criminal history until after a conditional offer of employment is extended.

The New York City Commission on Human Rights previously issued guidance on the FCA shortly after the law went into effect in October of 2015, but the legal effect of that guidance was unclear. The final rules, which had been pending since March of 2016, are consistent with prior guidance, with some clarifications and additional obligations. Specifically, the rules provide

  1. an expanded list of per se violations;
  2. an affirmative duty requiring employers to collect additional information from applicants in order to conduct the Article 23-A analysis;
  3. the required components of a compliant Fair Chance Notice (FCA Notice) when employers opt to use a customized form versus the model form provided by the Commission;
  4. a requirement that employers provide applicants or employees with written copies of all criminal history information obtained, regardless of the source, including documentation of public records and general Internet searches (e.g., Google searches);
  5. guidance for determining a reasonable waiting time between sending an applicant the FCA Notice and making a final employment decision;
  6. details concerning enforcement, including an early resolution process for certain employers that commit per se violations; and
  7. a rebuttable presumption that criminal history information motivated an employer's decision to rescind a conditional offer of employment.

Per Se Violations

Per se violations are those that result in automatic liability for an employer. The final rules provide an expanded list of per se violations, which include the following:

  1. Declaring, printing, or circulating any solicitation, advertisement, policy, or publication for employment that states, directly or indirectly, orally or in writing, any limitation or specification regarding criminal history. This would include, for example, an employer that publishes a classified ad that states "background check required."
  2. Using an employment application that requires applicants to grant an employer permission to run a background check or provide information regarding criminal history prior to extending a conditional offer.
  3. Making any statement or inquiry relating to an applicant's pending arrest or criminal history information before a conditional offer of employment is extended.
  4. Using a boilerplate employment application that requests or refers to criminal history information, even if it includes a disclaimer directing City applicants not to respond to those questions. 
  5. Failing to comply with the Fair Chance Process before withdrawing a conditional offer of employment.
  6. Requiring applicants to disclose an arrest that, at the time disclosure is required, has resulted in a non-conviction. "Non-conviction" means any arrest or criminal accusation, not currently pending, that was terminated in favor of the individual, adjudicated as a youthful offender, or sealed.

Employers' Affirmative Duty

The final rules clarify that the city's Fair Chance Process (unlike the individualized assessment process described in the U.S. Equal Employment Opportunity Commission's 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964) requires employers to actively seek out additional information from applicants in order to conduct their Article 23-A analyses, including clarification and evidence of rehabilitation and good conduct.

Compliant FCA Notice

An employer that wants to move forward with an adverse employment decision after conducting an Article 23-A analysis must send an FCA Notice to the affected applicant or employee before taking adverse action. The Commission has provided a model notice on its website for this purpose; however, employers may choose to create their own customized notices, so long as they are comparable. The final rules provide that a "comparable" FCA Notice must

  1. include the specific facts that were considered in connection with the Article 23-A analysis;
  2. set forth the outcome of that analysis;
  3. articulate the concerns and the basis for determining that (a) there is a direct relationship between the criminal record and the job in question or (b) an unreasonable risk of harm to specific person, the general public, or property; and
  4. inform the individual of his or her rights upon receipt of the notice, including how the individual can respond to the notice and the time frame within which he or she must do so.

Provide a Written Copy of Any Inquiry

With the FCA Notice, an employer must provide a written copy of any inquiry it made to collect information about an applicant's criminal history. The final rules clarify that written copies must be complete and accurate, and should contain each and every piece of information relied upon to determine if the applicant has a criminal history, including copies of consumer reporting agency report(s), printouts from Internet searches (with the information source identified and a date stamp showing the date and time the employer made the inquiry), public record(s), and written summaries of any oral conversations, specifying whether the oral information was self-disclosed by the applicant.

Reasonable Amount of Time

After the affected individual receives the FCA Notice and a written copy of the employer's inquiry, an employer is required to hold open a position for a reasonable amount of time in order to provide the individual with an opportunity to respond to the employer's concerns. Under the final rules, a "reasonable" amount of time is at least three business days and the employer should further determine what is reasonable based on (1) what additional information the applicant is purporting to gather and whether the additional information would change the outcome of the employer's initial Article 23-A analysis; (2) why the applicant needs more time to gather the information; (3) how quickly the position must be filled; and (4) any other relevant information.

Enforcement

The final rules provide for the early resolution of per se violations in certain circumstances where an employer is willing to admit liability and pay a penalty. The Commission will offer early resolution to employers that have (1) 50 or fewer employees; (2) no other pending Human Rights Law violations; and (3) no more than one Human Rights Law violation in the prior three years. Nevertheless, the Commission retains the right to proceed with a full investigation and hearing in cases where an early resolution would not serve the public interest. 

Rebuttable Presumption

The final rules establish a rebuttable presumption that when an employer revokes a conditional offer of employment without following the Fair Chance Process, the employer's decision was improperly motivated by the applicant's criminal history. To rebut this presumption, an employer must show that the offer was revoked based on (1) a medical exam permissible under the Americans with Disabilities Act; (2) material information that the employer could not have reasonably known prior to the conditional offer if, based on the information, the employer can show it would not have made the employment offer; or (3) the employer's production of evidence that it did not know of the applicant's criminal history prior to revoking the conditional offer.

Key Takeaways

Although the FCA has been in effect for nearly two years now, employers should take this time to reexamine their practices with respect to gathering New York City applicants' criminal history information—whether from background checks obtained from a consumer reporting agency or any other source—to ensure that they are in compliance with the law. Failing to comply with the FCA can be costly, as the FCA provides for penalties in addition to those typically available under the New York City Human Rights Law. The Commission has made clear its intent to vigorously enforce the FCA and take a narrow view of any available exemptions under the law.

Federal, state, and locally compliant background check forms and letters, including disclosure and authorization forms, are provided in the  O-D Comply: Background Checks subscription materials, which are updated and provided to  O-D Comply subscribers as the law changes.

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.