New York City expands the Fair Chance Act

New York City enacted bill Int. 1314-A , which amends the New York City Fair Chance Act (FCA). Int. 1314-A takes effect on July 28, 2021.

Background:

In 2015, the FCA amended the New York City Human Rights Law by prohibiting employers from asking about an applicant's criminal history before making a conditional job offer and requiring employers to conduct an individualized assessment when making employment decisions based on an applicant's criminal history. The FCA also requires employers to follow specific steps, including a notice and written analysis, before a conditional offer of employment may be withdrawn based on an applicant's criminal history

Int. 1314-A:

Int. 1314-A amends and expands the FCA in several ways.

Pending Criminal Accusations:

The amendments require employers to conduct a seven-part individualized assessment before taking adverse action based on an applicant or employee' pending criminal charges, arrests, or accusations. Currently, after making a conditional job offer, the FCA doesn't not prohibit employers from withdrawing that offer, or terminating employment, based on open, pending charges, and does not require an individualized assessment in these circumstances.

Under the amendments, before an employer may withdraw an applicant's conditional offer or take adverse action against an applicant or employee on the basis of a pending charge, an employer must individually assess the relevance of the alleged criminal conduct using the following seven factors:

• The policy of the city to overcome stigma toward, and unnecessary exclusion of, persons with criminal justice involvement in employment;
• The specific duties and responsibilities related to an individual's employment;
• The bearing of the circumstance for which the individual was convicted on their fitness or ability to perform one or more such duties or responsibilities;
• Whether the person was 25 years of age or younger at the time of the incident;
• The seriousness of the offense;
• The legitimate interest of the employer to protect property and maintain the safety and welfare of specific individuals or the general public; and
• Any additional information produced by the applicant or employee, or on their behalf, demonstrating their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community.

Adverse action against any applicant or employee based on an arrest or pending charges is only permitted after considering the factors listed above and determining that either:

• There's a direct relationship between the alleged the employment sought or held by the person; or
• Granting or continuing employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

If an employer reaches either of these conclusions, the employer must provide the employee with notice setting forth the employer's analysis and give the employee three business days to respond prior to the employer taking any adverse action.

Criminal Convictions During Employment:

Int. 1314-A makes it an unlawful discriminatory practice to take adverse action against any employee because they've been convicted of one or more criminal offenses during their employment, unless after conducting the FCA's individualized assessment, the employer determines that either:

• There's a direct relationship between the criminal conviction and the individual's employment held by the person; or
• The continuation of the employment would involve an unreasonable risk to property, or to the safety or welfare of specific individuals or the general public.

Before taking any adverse employment action against a current employee based on a criminal conviction, or pending arrest or criminal accusation, the employer must:

• Request from the employee information relating to the factors required in the individualized assessment;
• Perform an individualized assessment analysis;
• Provide a written copy of such analysis to the employee, including supporting documents that formed the basis for an adverse action based on such analysis and the employer's reasons for taking an adverse action; and
• After giving the employee the inquiry and analysis in writing, allow the employee a reasonable time to respond before taking adverse action.

The amendments also:

• Codify an existing rule regarding when an employer can revoke a conditional offer of employment;
• Prohibit employers from inquiring about non-pending arrests and criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications, or certain sealed convictions;
• Prohibit employers from inquiring about, or taking any adverse action, based on violations and non-criminal offenses (not including an applicant's motor vehicle record).

See the text of the law for further details.

Compliance Recommendations:

New York City employers should review their policies, forms, practices, and supervisor training to ensure compliance with Int. 1314-A. Please contact your dedicated service professional with any questions.