As many employers are aware, effective today, October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law to prohibit most employers from inquiring about criminal history until after a conditional offer of employment is extended. (Some employers may fall into the exceptions of this law.) The law also imposes upon employers the obligation to provide applicants with a copy of the relevant inquiry (e.g. the consumer report) and the company’s analysis under Article 23-A of the New York Corrections Law (in a form provided by the New York City Commission on Human Rights (“NYCCHR”)). On Friday, October 23, 2015, the NYCCHR released its Fair Chance Act Notice form (available here), and is expected to release its enforcement guidance imminently.
In the meantime, we recommend employers consider the following:
1. Review all pre-employment forms. Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no referenceto the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
2. Train hiring managers. Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment. If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
3. Revise the adverse action protocol. The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
(a) provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
(b) conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
(c) keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.
The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR (available here).
4. Consider best practices for direct inquiries to the applicant. Many employers may still wish to ask the applicant personally whether he or she has a criminal history. Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider. Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
5. Review FCRA disclosure forms. Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report. And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.
If you are currently using the Frasco Profiles Adverse Action online tools, are in NY City, and initiate Adverse Action, prior to sending the pre-adverse action notice, Frasco Profiles will contact you to complete the Article 23-A Analysis form to be sure it’s included with your pre-adverse action notice.
Notice provided with permission by Seyfarth Shaw attorneys Pamela Q. Devata, Equity Partner, Cameron Smith, Associate, and Courtney S. Stieber, Associate. If you would like more information, please contact your Customer Service Representative or one of the authors as follows: Pamela Devata at firstname.lastname@example.org, Cameron Smith at email@example.com, or Courtney Stieber at firstname.lastname@example.org.