NYC Expands Protections of Fair Chance Act for Employees and Applicants With Criminal Records

In January 2021, amendments strengthening the NYC Fair Chance Act became law and will take effect on July 29, 2021.  These amendments extend protections to employment applicants with pending criminal accusations and arrests, and convictions arising during employment. Employers may not inquire or act adversely against an applicant or employee with a non-pending arrest, adjournment in contemplation of dismissals, youthful offender adjudication, sealed offense, or a conviction arising during employment. Additionally, employers must now follow the Fair Chance Process of notice and review when considering a transfer, termination, or withdrawal of a promotion for current employees.

In 2015, New York City enacted the Fair Chance Act prohibiting all public and private employers, labor organizations, and employment agencies in New York City from asking about the criminal record of a job applicant before making a job offer (with the exception of law enforcement agencies or where local, state or federal laws prevent individuals with certain convictions from a particular job). The Fair Chance Act reduces stigma associated with involvement with the criminal legal system and risk of employment discrimination. Job ads, job applications, or interview questions that say “background check required” or “no felonies” are explicitly prohibited.  Employers must consider several factors to prevent employment discrimination against persons with criminal records. Employers must explain, in writing, when denying or withdrawing a conditional job offer based on a criminal background and provide copies of the background check prepared and criminal record information relied upon. The applicant must have three business days to respond, make corrections, and explain factors of good character and rehabilitation. The Act encourages employers to judge workers on their qualifications rather than their criminal record.

Under the process created by the 2021 amendments, employers are now required to make an individualized assessment of the charged conduct and the job requirements and consider fully the “relevant fair chance factors” including New York City’s policy to reduce stigma and barriers to employment for people with prior criminal justice system involvement, seriousness of the offense(s), and information about the individual’s rehabilitation, community involvement, or other examples of good conduct. The employer may withdraw a conditional job offer, promotion, or transfer by showing either a direct relationship between the conviction history and prospective job, or that employment would involve “unreasonable risk” to property, safety or welfare of specific individuals or the general public.  The employer must now request information related to the relevant factors from the applicant and provide the applicant with at least five days to respond.