The Fair Chance Act

October 31, 2015 | Employment & Labor

The Fair Chance Act, which imposes substantial restrictions and obligations on New York City employers, goes into effect on October 27, 2015. Generally, the ordinance prohibits an employer (with at least four employees) from inquiring about a candidate’s pending arrest or conviction record until after a conditional offer of employment has been extended.  Only a few narrow exceptions are afforded, i.e., when an employer is required by law to conduct a criminal background check for employment purposes.

Employers who do inquire about a job candidate’s criminal history after a conditional offer of employment has been presented—and decide to take an adverse employment action against the candidate based on that information—are required to follow a process. In this regard, the Act requires (i) that the employer provide the individual with a “written copy of the inquiry” which complies with the City’s Commission on Human Rights’ required format; (ii) perform an analysis as required by Article 23(a) of the New York Correction Law, “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”; (iii) provide the applicant with a written analysis, also in a manner which complies with the Commission’s required format, explaining the employer’s decision to take an adverse employment action; and (iv) allow the applicant at least three business days to respond to the written analysis by holding the position open during this time.

The Commission issued its “written analysis” form on October 23rd, a link for which is provided below.

Employers who decide to conduct background checks through a consumer reporting agency must remember to also comply with the Fair Credit Reporting Act.


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