NYC Human Rights Commission Proposes Rules to Implement Fair Chance Act

April 11, 2016
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NYC Human Rights Commission Proposes Rules to Implement Fair Chance Act

The New York City Human Rights Commission recently proposed rules to implement the Fair Chance Act (FCA), which took effect last fall. As New York City employers should be aware, the law amends the New York City Human Rights Law by prohibiting covered employers from inquiring about an applicant’s criminal history on an initial employment application and at any time prior to extending a conditional offer of employment.

The Proposed Rules

As described by the NYC Commission on Human Rights, the proposed rules are intended to “establish certain definitions and criteria around procedure and application of the Human Rights Law provisions regarding unlawful discrimination on the basis of criminal history against job applicants and employees.” More specifically, the Commission’s proposed rules:
  • Establish per se violations of the new provisions added by the FCA. For instance, an employer violates the FCA by simply “using applications for employment that require applicants to either grant employers permission to run a background check, or to provide information regarding criminal history.”
  • Clarify the types of questions and statements relating to criminal history that are prohibited under the FCA. Under the rules, “any communications made, orally or in writing, to the applicant or employee for the purpose of obtaining criminal history, including, without limitation, stating that a background check is required for a position,” are prohibited during a job interview and at any other time before a conditional offer is extended.
  • Explain the meaning of a conditional offer and establish the limited circumstances under which an employer can revoke a conditional offer.
  • Explain what an employer should do if they inadvertently come to learn about an applicant’s criminal history prior to making a conditional offer. The rules clarify that an inadvertent discovery by employer or unsolicited disclosure by applicant of criminal history prior to a conditional offer of employment does not automatically create employer liability. Employer liability is created when an employer uses the discovery or disclosure to further explore an applicant’s criminal history before having made a conditional offer.
  • Clarify the procedure that must be followed by an employer upon learning of an applicant or employee’s criminal history and what steps must be taken before revoking a conditional offer or taking an adverse employment action. Notably, the rules expressly state that an employer may not change the duties and responsibilities of a position upon learning of an applicant’s or employee’s criminal history.
  • Establish clear guidelines that employers must follow when considering whether and how applicants and employee’s criminal convictions or pending cases 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. Under the rules, the analysis requires requires “consider[ing] and apply[ing] the Article 23-A factors to determine if in fact an unreasonable risk exists,” which differs from the procedure set forth in previous guidance.
  • Detail what information an employer must provide to an applicant or employee if a determination is made to revoke a conditional offer based on their conviction history or pending case and clarify how an employer must evaluate an applicant or employee’s request for more time. The proposed rules establish a four-factor test for determining what constitutes a “reasonable” time for responding to an employer’s concerns, but state it must be no less than three business days.
  • Require an employer to consider any documentation that the applicant or employee presents to support their assertion that the information on the background check contains an error.
  • Explain the exemptions under the FCA. With regard to a position where federal, state, or local law requires criminal background checks or bars employment based on criminal history, the rules clarify that the exemption does not apply to an employer authorized, but not required, to check for criminal backgrounds. Similarly, a position is not covered by the exemption simply because it requires licensure or approval by a government agency other then the hiring employer for which criminal history could be a mandatory barrier. However, good news for employers, the rules also state that it is an affirmative defense that any action taken by an employer is permissible pursuant to a perceived exemption.
  • Clarify that employers may not request information or inquire about the non-convictions of applicants or employees and may not deny or take any adverse actions against applicants or employees based on non-convictions.
  • Provide a discretionary mechanism for responding to charges of per se violations in which the Commission’s Law Enforcement Bureau would send an Early Resolution Notice to employers or licensing agencies.

Moving Forward

Our New York employment lawyers will be closely tracking the status of the proposed rules and provide updates as they become available. In the meantime, NYC employers are advised to thoroughly review their employment applications and job listings to ensure compliance with the Fair Chance Act. As the intricacy of the proposed rules suggest, the new obligations have the potential to cause unintended liability for those businesses that are unprepared. For other articles pertaining to Employment, head to:
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