What is the New York City Fair Chance Act and how do I comply?
TruDiligence Knowledgebase – Background Check Services
Our legal team has published an excellent best practices guide to complying with the New York Fair Chance Act. Some suggested steps are:
1. Review all pre-employment forms. Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no reference to the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
2. Train hiring managers. Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment. If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
3. Revise the adverse action protocol. The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
(a) provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
(b) conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
(c) keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.
The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR (available here).
4. Consider best practices for direct inquiries to the applicant. Many employers may still wish to ask the applicant personally whether he or she has a criminal history. Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider. Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
4. Review FCRA disclosure forms. Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report. And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.
For the full text of the guidance click here: http://www.seyfarth.com/publications/OMM102315-LE2
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