What is the New York City Fair Chance Act and how do I comply?
TruDiligence Knowledgebase – Background Check Services
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
This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies.
Our Privacy PolicyOKWe may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.
Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.
These cookies are strictly necessary to provide you with services available through our website and to use some of its features.
Because these cookies are strictly necessary to deliver the website, refusing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.
We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.
We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.
We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.
Google Webfont Settings:
Google Map Settings:
Google reCaptcha Settings:
Vimeo and Youtube video embeds:
You can read about our cookies and privacy settings in detail on our Privacy Policy Page.
Privacy Policy