Effective Immediately, The New York City Fair Chance Act Substantially Restricts Employers’ Use of Criminal Background Checks

The New York City Fair Chance Act (FCA) goes into effect today, October 27, and applies to any employers in New York City with four or more employees. The FCA amends the New York City Human Rights Law and significantly limits how employers in New York City may use an applicant’s criminal history in making employment decisions.

As we previously posted, the FCA contains, among other things, the following pre-offer restrictions:

  • Employers are prohibited from, either directly or indirectly, indicating that there is any limitation for a position based on a person’s arrest or criminal conviction record; and
  • Employers cannot make any inquiry into an applicant’s arrest or criminal conviction record until after extending a conditional offer of employment.

The FCA also contains restrictions on an employer’s ability to revoke a conditional offer based upon the results of a criminal background check. New York State law already restricts the ability of an employer to revoke a conditional offer. Under New York State law, a conditional offer may be revoked only after the employer considers specific factors enumerated in the Correction Law § 753 and determines, based upon those factors, that:

  1. There is a direct relationship between one or more of the previous criminal offenses and the … employment sought or held by the individual; or
  2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

The FCA goes further than the existing state law and requires employers in New York City to provide an individual whose conditional offer is being revoked with the “analysis and factors used to make the decision” on a form created by the NYC Commission on Human Rights, which can be found here.

The FCA and the New York City Stop Discrimination in Employment Act (which prohibits most employers from considering an applicant’s credit history and was discussed in a previous post here) have significantly changed the ability of employers in New York City to use background checks in making employment decisions. New York City employers are well advised to seek legal counsel before making any adverse employment decisions based upon the results of a background check.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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