If you hire in New York City, you have probably seen our prior legal updates on the NYC Fair Chance Act’s amendments, which were signed into law on January 29, 2021, and become effective July 29, 2021.
The NYC FCA generally only applies when the position sought is located in New York City and the employer has four or more employees. It generally does not apply to New York City residents applying for jobs outside the City, even if the company’s headquarters and/or human resources department are based in New York City.
The FCA dictates how and when employers can run background checks for employment purposes, what information can and cannot be solicited from a potential employee, what criminal information can be considered in a hiring decision, and the additional steps you must go through when taking adverse action based in whole or in part on a consumer report (background check).
Since the Act was signed into law, everyone has been anxiously awaiting guidance on some of the provisions of the amendments, as the Commission’s intent was a little unclear in areas. The Commission has now published their Guidance, which you can access here.
In the Guidance, the Commission clarifies that they do expect employers two conduct two separate background screenings: 1) everything other than criminal, then 2) criminal searches. The Commission also clarifies that MVR records should be included in the second group with criminal checks.
The screening on “everything other than criminal” should ideally be done before a conditional offer of employment, and may include things like employment and education verifications, government exclusion and sanctions screening, drug tests, and other types of services. Under the category of “criminal,” screenings may include all criminal searches, MVR, sexual offender, and other searches that may reveal criminally related information.
Aside from changing the way you process background checks, the Guidance also expects employers to remove any references to criminal history in applications, job posting, etc. – even neutral statements.
If you are currently screening applicants/employees in New York City and did not arrange for a two-step screening process earlier this year, and would like to restructure your background packages so you can use a two-step process now in NYC (and other jurisdictions with similar requirements), please contact Customer Service at info@frasco.com or by calling (800) 820-9029.
The material in this post is for informational purposes only and nothing contained in it should be construed as legal advice. We strongly urge you to consult with your legal counsel to obtain a legal opinion specific to your needs.
