On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process. You can read more about the Act here. The New York City Commission on Human Rights (the “Commission”), the agency charged with enforcement of the Act, recently issued “Legal Enforcement Guidance” (the “Guidance”) regarding the Act. As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.
The Act makes it an unlawful discriminatory practice to “[m]ake any inquiry or statement related to the pending arrest or criminal conviction record of any person who is in the process of applying for employment with such employer or agent thereof until after such employer or agent thereof has extended a conditional offer of employment to the applicant.” The Guidance defines several terms in this key component of the Act, including the terms “inquiry”, “statement” and “conditional offer of employment”, providing further guidance regarding the prohibition.
The Guidance defines “inquiry” as “[a]ny question, whether made in writing or orally, asked for the purpose of obtaining an applicant’s criminal history, including, without limitation, questions in a job interview about an applicant’s criminal history; and any search for an applicant’s criminal history, including through the services of a third party, such as a consumer reporting agency.” The Guidance defines the term “statement” as “[a]ny words, whether made in writing or orally, for the purpose of obtaining an applicant’s criminal history, including, without limitation, stating that a background check is required for a position.” These definitions make clear that the Commission views the Act’s prohibitions on soliciting an applicant’s criminal history very broadly and that, unless an exemption applies, employers may not seek to obtain an applicant’s criminal history via any method prior to a conditional offer of employment. In fact, later in the Guidance, the Commission demonstrates how expansive it believes this prohibition is, stating that employers are prohibited from even using search tools such as Google to search for terms such as, “arrest,” “mugshot,” “warrant,” “criminal,” “conviction,” “jail,” or “prison” with respect to an applicant.
The Guidance also defines the term “conditional offer of employment” as “[a]n offer of employment that can only be revoked based on: (1) “[t]he results of a criminal background check”; (2) “[t]he results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act”; or (3) “[o]ther information the employer could not have reasonably known before the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material to job performance.“ In accord with this definition, in the “Enforcement” section of the Guidance, the Commission states that it will presume, unless rebutted, that an employer was motivated by an applicant’s criminal record if it revokes a conditional offer of employment and that it will also presume that any reason known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer.
Per Se Violations of the Act
The Guidance details what it refers to as per se violations of the Act. The Guidance states that making any inquiry or statement related to criminal history of an applicant is a per se violation. It is also a per se violation to declare, print or circulate any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history. For example, an advertisement or an employment application that stated “no felonies,” “background check required,” or “must have clean record” would be a violation of the Act. The Guidance concerning per se violations also makes clear that such violations are not contingent upon a showing that an adverse action was taken against the applicant. The employer is liable for such offenses even if the applicant is ultimately hired.
Under the Act, after a conditional offer of employment has been made, an employer may seek to obtain the criminal history of an applicant and may take adverse action based on that information, provided that the employer follows the various steps proscribed by the Act, including completing the multi-factor analysis under Article 23-A of the New York State Corrections Law (“Article 23-A”). The Guidance makes clear that an employer’s failure to properly complete any of the steps required by the Act, constitutes a per se violation of the Act.
In addition, the Guidance provides that taking an adverse employment action because of an applicant’s “non-conviction” constitutes a per se violation of the Act. The Guidance defines “non-conviction” as (1) a termination of a criminal action in favor of the employee; (2) a juvenile conviction; or (3) a conviction under seal. To guard against soliciting or considering non-conviction information, the Guidance provides the following sample language, which may be used after a conditional offer is made:
Have you ever been convicted of a misdemeanor or felony? Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.
Article 23-A and The “Fair Chance Process”
If, after obtaining an applicant’s criminal history, an employer wants to withdraw its conditional offer of employment, to comply with the Act, the employer must consider the Article 23-A factors and then follow several steps, which the Guidance refers to as the “Fair Chance Process.” These steps as detailed in the Act and in the Guidance are as follows:
- Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history;
- Share with the applicant a written copy of its Article 23-A analysis; and
- Allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.
The Act directs the Commission to determine the manner in which employers inform applicants under Article 23-A and provide a written copy of that analysis to applicants. In accord with this, the Commission has published a model Fair Chance Act Notice for employers to use. It is available here. The notice may be adapted to an employer’s preferred format as long as the material substance of the model form does not change.
Although not addressed in the Guidance, to the extent employers utilize a third party to conduct the criminal background check, employers are reminded that they still need to comply with the notice and consent requirements of the federal and New York State Fair Credit Reporting Acts.
Misrepresentations by the Employee Regarding Criminal History
The Guidance states that, if an applicant misrepresents his or her criminal history, and if the applicant cannot or does not demonstrate that any discrepancy between the information he or she disclosed and the employer’s background report is due to an error, an employer may disqualify the applicant and choose not to hire him or her, and is not required to perform an Article 23-A analysis before making such a decision.
Positions Exempt from the Act
The Guidance states that all exemptions to the Act are to be construed narrowly. With respect to the exception for employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions, the Guidance makes clear that the exception does not apply where the federal, state or local law is discretionary rather than mandatory in nature. The Guidance also provides that an employer is only exempt from the Act when hiring for positions where a criminal history check is required by law. For positions that do not require a criminal history check, employers have to follow the Act.
The Guidance further provides that employers required by a self-regulatory organization (“SRO”) to conduct a criminal background check are only exempt with respect to those positions regulated by SROs; employment decisions regarding other unregulated positions must still comply with the Act.
The Guidance sets forth a list of best practices for employers. To the extent an employer seeks to claim an exemption, the Commission recommends that the employer keep an exception log, which should be retained for five (5) years, and include the following:
- Which exemption(s) is claimed;
- How the position fits into the exemption and, if applicable, the federal, state, or local law or rule allowing the exemption;
- A copy of any criminal history inquiry, along with the name of the employee who made it;
- A copy of the employer’s Article 23-A analysis and the name of any employees who participated in it; and
- The final employment action that was taken based on the applicant’s criminal history.
The Guidance also recommends that the results of any criminal history inquiry be maintained separately from other information and kept confidential and should not be used, distributed, or disseminated to any persons other than those involved in making an employment decision about an applicant.
Pending Criminal Charges
The Guidance makes clear that the prohibition on criminal history inquiries prior to the conditional offer of employment not only includes criminal convictions, but also includes pending criminal charges. However, the Guidance also states that neither the New York City nor New York State Human Rights Law prohibits basing an employment decision on a pending criminal proceeding. Thus, it appears that employers may continue to reject an applicant based on pending criminal charges, provided that no inquiry or decision is made based on such charges prior to the conditional offer of employment.
The Guidance provides that any notices and disclosures required by the Act and the Guidance may be communicated by email, if such a method of communication is mutually agreed on in advance by the employer and the applicant.