New York City Expands Fair Chance Employment Ordinance

Ban the box legislation shows no signs of slowing down in 2021. Recent news from New York City indicates that the country’s biggest metropolis will be amending and expanding its existing Fair Chance Act this year.

The New York City Council passed the Fair Chance Act in June of 2015. That law, which took effect in October 2015, requires employers operating in the city to delay inquiries about a job applicant’s criminal history until the end of the hiring process. As with similar ban the box laws, the Fair Chance Act allows employers to conduct a background check on a candidate after making a job offer. It applies to both public and private employers.

In addition to delaying the background screening process, the NYC law requires employers to follow “the Fair Chance Process” if they decide to rescind a job offer based on criminal conviction information from a background check. This process requires the employer to determine whether the criminal conviction is directly relevant to the position and whether hiring the candidate would pose a significant risk to property or safety.

The employer must provide the candidate with a copy of the background check report and a summary of their analysis, give the candidate three days to respond before making a final decision, and consider the candidate’s rebuttal if they choose to make one.

The newly-amended Fair Chance Act keeps all these requirements in place and expands the reach to fill in gaps in the original legislation. Here are some of the ways that the New York City Council has expanded the employee and job seeker protections provided by the Fair Chance Act:

• Employers must use the Fair Chance Process before they rescind a job offer based on a pending arrest or any other criminal accusation. The original ordinance did not mention pending arrests.
  
  
• The 2015 version of the Fair Chance Act only applied to job applicants. The new version also requires employers to follow the Fair Chance Process when denying or rescinding a promotion or transfer based on criminal conviction information, or when terminating an employee for the same reasons.
  
• The amended law adds protections for independent contractors and freelancers.

• The new law doesn’t just apply to criminal convictions or pending arrests but also to past arrests, sealed offenses, certain court matters, and other cases.

• The law does not protect employees from being fired or candidates from being removed from job consideration if they commit “intentional misrepresentations” of their experience, qualifications, skills, or other information. However, it does require 1) that employers provide applicants or employees with documents that prove the intentional misrepresentation (such as a background screening resume verification report), and 2) that employers give the applicant or employee time to respond to the allegation.

Employers in New York City are still permitted to run background checks and make hiring decisions (and firing decisions) based on what they find. However, employers affected by this newly-amended Fair Chance Act should consult with their lawyers and review their hiring and background screening protocols to determine whether they are still legally compliant.

The amendments to the Fair Chance Act are expected to go into effect on July 28, 2021.