On August 5, 2017, the New York City Commission on Human Rights released rules reflecting how they intend to enforce the Act. The purpose of this article is to highlight some of the most important new rules. For additional information, please refer to our two prior Compliance Updates (New York City’s Fair Chance Notice and New York’s Article 23-A).
The FCA includes “per se violations” which are defined as “an action or inaction that, standing alone, without reference to additional facts, constitutes a violation of title 8 of the Administrative Code, regardless of whether any adverse employment action was taken or any actual injury was incurred.” It is a per se violation to:
- Make reference to criminal convictions or criminal background checks in job postings, advertisements, or other publications;
- Inquire about criminal conviction histories in job applications in any job application inform;
- Refer to an applicant’s criminal conviction history prior to the extension of a conditional offer of employment;
- Fail to comply with the procedural notice requirements in the event of withdrawal of a conditional offer of employment because of information in an applicant’s criminal conviction background report; and
- Seek information about arrests that did not result in a criminal conviction.
The fines range from $500 to $3,500 for initial violations to $1,000 to $10,000 for subsequent violations.
The rules implementing the FCA establishes guidelines that employers must follow when considering whether and how applicants’ and employees’ criminal convictions relate to the duties of a prospective or current job or would pose an unreasonable risk to the property or the safety or welfare of specific individuals or the general public. Upon learning of a criminal conviction, the employer must first determine whether there is a “direct relationship” between the conviction and the job by “first draw[ing] some connection between the nature of the conduct that led to the conviction(s) and the position.” If a direct relationship exists, the employer must then evaluate the Article 23-A factors to determine whether hiring the individual would pose an unreasonable risk. This analysis must be recorded in writing.
The rules also instruct employers on the process by which they may withdraw conditional offers of employment. Once they have determined that an unreasonable risk exists. Prior to withdrawing a conditional offer of employment, an employer must:
- “Provide a complete and accurate copy of each and every piece of information relied on to determine that the applicant has a conviction history,” including but not limited to Internet search results, consumer reporting agency reports, and “written summaries of oral conversations;”
- Provide a written copy of the analysis conducted pursuant to Article 23-A. While employers are under no duty to use the form drafted by the Commission for this purpose, the analysis provided “must (1) include specific facts that were considered pursuant to the Article 23-A analysis and the outcome, (2) articulate the employer’s, employment agency’s, or agent’s concerns and basis for determining that there is a direct relationship or an unreasonable risk, and (3) inform the applicant of their rights upon receipt of the notice, including how they can respond to the notice and the time frame within which they must respond;”
- Provide the applicant with a reasonable period of time (which must be three days or longer) in which to respond to the report. In this process, the employer “must affirmatively request information concerning clarification, rehabilitation, or good conduct while engaging in the Article 23-A analysis.” The Rules also contain a detailed protocol concerning the employer’s duty to hold the position open while the applicant gathers this information; and
- Consider any additional information provided by the applicant and provide a written final determination addressing any such additional information provided.
Employers must consider any additional information provided by the job applicant and provide a written final determination addressing any such additional information provided. If the job applicant “intentionally failed to answer a legitimate question about their conviction history, the employer, employment agency, or agent thereof may revoke the conditional offer or take an adverse employment action.”
- The FCA and the rules implementing it contain considerable detail and require your careful review.
- The FCA has category of “per se violations” with fines that range from $500 to $3,500 for initial violations to $1,000 to $10,000 for subsequent violations.
- If an employer intends to take adverse action on the basis of an applicant’s criminal history, it must first draw a direct connection between the position at issue and the applicant’s criminal conviction history, and then apply the Article 23A factors to determine whether the risk has been mitigated.
- Employers must follow four specified steps before withdrawing a conditional offer of employment based on information in a job applicant’s criminal conviction history report.
The new rules implementing the FCA can be viewed here: