New York City Council Expands Applicant Protection under the Fair Chance Act

The New York City Fair Chance Act (“FCA”), which took effect in October 2015, generally prohibits New York City employers from inquiring about an applicant’s or employee’s criminal conviction record before a conditional offer of employment has been made.  Under the FCA, employers are also prohibited from searching public records to obtain information related to an applicant’s criminal history prior to extending a conditional offer of employment.  The FCA further requires the employer to apply a job-related analysis to the criminal conviction before they can take any adverse action regarding a conditional offer of employment.

On January 10, 2021, The New York City Council’s proposed amendments to the FCA became law and will take effect on July 29, 2021.  By design, the amendments will substantially expend protection for applicants and employees with criminal records.  Specifically, the City Council’s amendments to the FCA expand the law’s protection from criminal convictions to include pending arrests and criminal accusations as well as criminal convictions during employment.  Additionally, the amendments introduce additional FCA factors an employer must consider as part of their job-related analysis, also known as the “relevant fair factor” test, before disqualifying an applicant or revoking a conditional offer of employment.  After engaging in the job-related analysis, if an employer concludes that there is either: (i) a direct relationship between the alleged wrongdoing that is the subject of the conviction, pending arrest, or criminal charge and the employment position sought or currently held by the employee; or (ii) the granting or continuation of employment would create an unreasonable risk to property, the safety or welfare of specifical individuals or the general public then the employer may revoke a conditional offer of employment.

But what exactly are these factors for the “relevant fair factor” test?  The City Council’s amendments set forth the following seven factors an employer must consider when engaging in the newly mandatory job-related analysis:

1. The policy of the City to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the area of license and employment;
2. the specific duties and responsibilities necessarily related to the employment held by the person;
3. the bearing, if any, of the criminal offense or offenses on the applicant or employee was convicted, or that are alleged in the case of pending arrest or criminal accusations, on the application or employee’s fitness or ability to perform one or more such job duties or responsibilities;
4. whether the applicant is 25 years of age or younger at the time of occurrence of the criminal offenses or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations;
5. the seriousness of such offense or offenses;
6. the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public, and
7. any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good behavior, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

After the employer has performed the job-related analysis, the employer must provide a written copy of such analysis to the employee, including, but not limited to, the supporting documents the employer relied on when formulating the basis for an adverse action and the employer’s reasoning behind the adverse action taken against such employee.  After giving the employee written notice, the employer must allow the employee “reasonable time” to respond before taking any adverse action.  It should be noted, however, that the phrase “reasonable time” is currently undefined under the City Council’s amendments.

Lastly, in addition to the new employer obligations, the City Council’s amendments will codify the outstanding rule that an employer may take an adverse action against an applicant or employee if the employer determine the applicant or employee intentionally misrepresented their criminal background, so long as the employer’s inquiry was lawful and the applicant or employee is provided documents supporting the employer’s position and is given reasonable time to respond.  The amendments also codify the existing rule that an employer can revoke a conditional offer of employment only based on criminal information reviewed after all other screening and background checks have been completed.

If you believe that you are a covered applicant or employee who has been discriminated against on the basis of a criminal conviction, contact Borrelli & Associates, P.L.L.C to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 248-5550, (212) 679-5000, or (516) ABOGADO.