October 9, 2021
As employers faced decisions on which coronavirus-related restrictions to implement in the workplace, New York City amended The New York City Fair Chance Act (NYC FCA) to expand the protection for applicants and employees with a criminal record, JD Supra reports.
The NYC Fair Chance Act, which took effect in October 2015, was created to prohibit employers in New York from asking job applicants about their criminal records prior to a conditional offer. This means that an interviewer is not allowed to ask any personal questions regarding the applicant’s criminal history in the application forms or when conducting an interview. The same rule applies, no matter whether the applicant has been referred or found the job through one of the job posting websites. The aim of the FCA is for employers to hire applicants based on their qualifications, and not based on their criminal and other records.
The amendments in the NYC FCA involve many aspects of the current law and took effect on July 29 this year.
Current Employees and Independent Contractors Get Protection
The most significant change is that the FCA protections now cover not only current employees and applicants, but independent contractors as well. If either has a pending criminal case, the employer cannot take any drastic measures without first going through the Fair Chance Process and applying the new version of the Fair Chance Analysis. This new version affects employees and independent contractors, and it integrates a review of seven factors (the “NYC Fair Chance Factors”) provided in the NYC Commission on Human Rights Legal Enforcement Guidance on the NYFCA.
Fair Chance Process Modification
Another important change is the alteration to the Fair Chance Process. Now the employer is required to request information from the current employee or job applicant about any criminal history (past or pending) to be used in the Fair Chance Analysis. Then, the employer needs to provide the applicant with a copy of their background check report, along with a written copy of the Fair Chance Analysis, and allow them to respond within the next five days.
Similar modifications have been done for prospective tenants, with the NYC Fair Chance for Housing Act prohibiting landlords from using screening services to conduct criminal background checks on tenants.