The New York City Fair Chance Act (FCA), also sometimes referred to as the “ban the box” law, ensures that those with a criminal record can still find work that they are qualified to perform. It means that employers can't inquire about an applicant's criminal record during the interview process nor terminate current employees solely for their criminal history. The only exception is if the crime somehow involves their current role and may put others in danger.
Recent amendments to the FCA effective July 2021, have enhanced the protections for job seekers to encompass those with non-convictions. The amendments also provide increased job security for those with pending criminal charges.
What does this mean for employers? Well, you can find out exactly that and more by reading our complete guide to the latest Fair Chance Act amendments.
What Is the New York City Fair Chance Act?
First enacted on October 2, 2015, the New York City Fair Chance Act renders it illegal for most employers to inquire about a job applicant's criminal history before offering them a job. This protection extends to application forms, job ads, listings, and interview questions. Lawmakers enacted it intending to level the job application process, encouraging employers to judge applicants based on their character and qualifications rather than their past.
For example, when an employer tenders a job offer to the applicant but later chooses to revoke this offer based on previous criminal activity, the employer must do this in accordance with the FCA. The process usually entails gathering evidence of the background check the employer performed and a provision of three to five business days to give the applicant time to respond.
In addition to getting a background check completed, the employer must also provide the applicant with copies of what they found from the criminal record check. This record gives the applicant the opportunity to challenge the findings if necessary (though this is unlikely).
In some instances, an employer may become aware of an applicant's criminal history through internet searches or access to public records rather than through professional screening. In this instance, they must still provide copies of the relevant documents to the applicant regardless of their origin. Failure to do so is in breach of the NYC Fair Chance Act.
What Changed With the New York City Fair Chance Act Amendment?
The Fair Chance Act's primary focus has always been protecting worker rights, specifically people with previous criminal records who are now seeking employment. It essentially limits the kinds of inquiries employers can make and when they can investigate prior convictions during the hiring process. The recent amendments to the act expand upon those original protections.
The new amendments primarily pertain to workers who have a history of non-convictions. This includes unsealed violations and unsealed non-criminal offenses. As its name suggests, a non-conviction is when there is no conviction for the person accused of a crime.
Despite what many may believe, these charges still show up on a criminal record. Ideally, they shouldn't affect employment prospects, given that they didn't result in a criminal conviction, but discrimination is still possible due to how many people view criminal histories. Any association can seem negative, even without a conviction.
Unsealed violations or unsealed convictions effectively refer to any criminal history that an employer or licensing agency may inquire about in the background check process. It is illegal for most employers to inquire about sealed violations. Sealing a conviction is different from expungement, but it may be the only option available to those trying to distance themselves from their criminal past in certain states. Since 2017, it has been legal to seal convictions in New York.
However, if, for whatever reason, a person can't get their previous conviction sealed, the new amendments to the NYC Fair Chance Act provide protection for those with unsealed violations. Its purpose is not to make the screening process more complicated for employers. Many of the critical changes to the FCA simply aim to close many of the loopholes presented by the original act.
What Are the Key Points of the New York City Fair Chance Act Amendment?
We have highlighted and explained some key points below to further clarify the amendments made to the act.
Introduction of a Two-Step Background Check
If an employer wishes to investigate an applicant's criminal history, they must first complete all other relevant checks. This includes, but is not limited to, reference checks, drug screens, credit checks, and confirmation of both educational and professional history (including qualification verification).
Once the employer has completed the above steps and has made a conditional offer of employment, they can check an applicant's criminal background. In other words, an applicant's criminal record cannot be the first thing an employer checks; it must always follow the other procedures.
Enactment of a 'Fair Chance Process'
Suppose an employer performs a criminal background check and decides not to employ the applicant based on this. The employer must then complete a ‘Fair Chance Process’ before making the final decision.
The process comes in the form of the Fair Chance Act Notice, which the applicant must complete before the hiring process can continue. The employer will need to fill out the opening section of the Notice, indicating why they have made their decision.
If the employer decides to revoke their initial conditional offer following the criminal background check, they must thoroughly analyze the situation, taking into account the completed Notice. The Notice gives the applicant the chance to prove they have since rehabilitated their behavior and provide examples of how this has taken place. If the applicant puts forward sufficient evidence of rehabilitation, the employer can reinstate the conditional offer.
Total Protection for Non-Convictions
A further amendment to the Fair Chance Act makes it abundantly clear to employers that under no circumstances can employers take unsealed violations and unsealed non-criminal offenses into account during the hiring process. It additionally includes non-convictions. Previous charges that resulted in no conviction are not reasons to withhold employment. The Fair Chance Act makes this clear.
Other areas that may appear on a criminal record but cannot be reasons for preventing employment also fall under this amendment. This includes, but is not limited to, youthful offender adjudications and adjournments in contemplation of dismissal.
Essentially, as an employer, you only possess the right to deny employment if the criminal background check reveals a conviction. Even then, the employer must provide substantial evidence to suggest the applicant is not appropriate for the role.
How Does the NYC Fair Chance Act Amendment Impact Employers and Recruiters?
There are numerous ways that this amendment may further affect employers and recruiters, but they needn't alarm you. Below are some of the most noteworthy ways the changes to the Fair Chance Act could affect employers.
Protection for Existing Employees
One of the first areas that will impact employers concerns the staff they have already hired. Previously, the Fair Chance Act only covered those who were applying for a position. Following the recent amendments, current employees now have protections, too. So what does this mean for employers?
Well, suppose an employer discovers new information regarding a current employee's criminal background. They can only engage with this by adhering to the Fair Chance Process. If the employer decides to pursue adverse action, they can place the employee on unpaid leave for a ‘reasonable amount of time,' approximately five business days. In that time, the employer must pursue adverse action in accordance with the Fair Chance guidelines.
Discretion for Pending Arrests and Accusations
In addition to any new information discovered regarding a current employee's criminal background, pending arrests and accusations also fall under the protection of the Fair Chance Act. This also applies to new applicants who have a pending arrest against them but are seeking employment.
Before the new amendments, employers could rescind a conditional offer after discovering a pending arrest against an applicant. Under the new amendments, employers must complete the Fair Chance Process in full prior to rescinding the initial conditional offer.
Inclusion of Independent Contractors and Freelancers
It can be easy to believe, as an employer, that you are exempt from all of this if you predominantly hire freelancers and contractors. You don't have full-time employees, so why should this matter to you? Well, maybe it didn't before, but it does after these amendments.
Now, both contractors and freelancers are eligible for the same protection as full-time staff under the Fair Chance Act. Any background checks performed on either group must adhere to the relevant policies.
Introduction of New ‘Fair Chance Factors’
When assessing whether an applicant or employee with a criminal background is eligible for employment, there are a variety of factors an employer must consider. These are available under the Fair Chance Factors, but they have seen some new additions following the recent amendments. These new factors include:
- Whether the criminal conviction impedes the individual's ability to conduct their professional role
- Whether the individual was 25 years old or younger when the criminal or alleged offense occurred
- New York City's interest in overcoming the stigma associated with previous criminal convictions
- How a conviction could impact the specific duties of the employee
- The serious nature of the original conviction and how this could affect colleagues and professional relations
- Further information provided by either the applicant or current employee concerning their improvement or rehabilitation since the conviction
- If the previous conviction indicates either could be in danger, the employer's interest in protecting their property and current staff.
Understanding the new Fair Chance Factors, in addition to the previously adopted rules, is integral to ensuring your screening process is law-abiding. The last thing you want to do, as an employer, is cut corners and later face serious legal repercussions.
Additional Prohibitions for Employers Investigating Criminal History
Even with the previous form of the Fair Chance Act, there were areas where employers couldn't delve. These prohibitions have expanded since the amendments to include:
- Any non-pending arrest or accusation
- Any violation with a potential prison sentence of no longer than fifteen days
Any conviction of a non-criminal offense in another state
- Adjournments in contemplation of dismissal
- Youthful offender adjudications
- Sealed offenses
Any of the above, including areas previously indicated by the Fair Chance Act, are entirely off-limits for employers who seek to enact adverse action against an applicant or employee. Naturally, this applies to all consumer reporting agencies too. The areas listed above (in addition to the pre-amendment areas) are inapplicable as reasons for the adverse employment action.
Extended Time for Applicants to Respond
Among the new amendments was an expansion on how long applicants have to respond to a Fair Chance Analysis from a prospective employer. The limit now sits at five business days, whereas previously, it was only three.
How Does the NYC Fair Chance Act Amendment Impact Consumer Reporting Agencies?
The new amendments won't just affect employers. Consumer reporting agencies also must adhere to the changes with every background check they perform. We have listed some key changes below for you to review.
Bifurcated Reports Required
Any consumer reporting agency must complete a bifurcated report when providing information to employers on an applicant's background. It essentially means that the report will come back in two sections.
After these initial checks, the reporting agency may provide the criminal background check in a separate section. However, they can only do this after the employer has made a conditional offer to the applicant.
If a consumer reporting agency cannot automatically bifurcate the background check for whatever reason, the employer must do so. This is to ensure that they review all non-criminal information first.
Impartiality Required Regarding Criminal Discrimination
A second significant change to the way consumer reporting agencies may operate is regarding their impartiality. Under the guidance of the new amendments, they cannot advise an employer to avoid a particular applicant due to their criminal background or any other information they uncover. They must remain entirely unbiased.
Any attempt to influence an employer by a consumer reporting agency would put themselves in direct breach of the Fair Chance Act, thus making their practices unlawful. The screening agency must present all information in a factual, objective manner. Any attempt to influence the employer will breach the terms of the Fair Chance Act and could make the employer liable to legal recourse.
How Can ScoutLogic Help With New York City Fair Chance Act Compliance?
For years, ScoutLogic has provided support to numerous companies in hiring only the very best staff. A crucial part of this is thorough background checks. Our screen process leaves no stone unturned, so you can rest assured that the person you are hiring is exactly who they say they are.
Our background checks in New York City can ensure that you receive reports in accordance with the act. At ScoutLogic, we are always fully committed to abiding by state and federal laws.
By processing your background screenings through us, you can rest assured that our experts have done their due diligence in ensuring our processes are entirely law-abiding. We have incorporated the new amendments to the Fair Chance Act into our screening processes where necessary. It means you can rest assured you are receiving precisely the information you need in precisely the bifurcated format you require, with no fear of legal or professional repercussions at a later date.
Part of ScoutLogic's central ethos is a commitment to customer satisfaction. We want you, as an employer, to find the best possible people for your team. Additionally, we want the best people for the role to find the positions they deserve. Our goals are your goals, and that investment has led us to provide one of the most thorough, comprehensive, and trustworthy services available.
An integral part of our service's success is compliance. In addition to the newly amended Fair Chance Act, we at ScoutLogic are also fully FCRA certified and comply with numerous rules and regulations regarding screening and employment on a national scale. Our experts diligently review all our processes, again and again, to ensure we provide our customers with the best possible experience, with no legal loopholes waiting around the corner.
Get in Touch With Scout Logic
Are you an employer planning on rolling out your next recruitment process? If you aren't confident regarding the ins and outs of the new Fair Chance Act, contact ScoutLogic today. Our experts are ready to answer any questions you may have. We will ensure that the person you hire is who your company needs.
Don't waste any more time worrying about the small print—let us handle that. Contact ScoutLogic today.