Currently, New York City’s FCA generally prohibits New York City employers from making an inquiry about an applicant’s criminal conviction record until after making a conditional offer of employment. Once a conditional offer is made, employers are permitted to ask questions or to run a criminal background check but are required to conduct an analysis known as the Fair Chance Process before the offer is rescinded based on the applicant’s past conviction history. Under the Fair Chance Process, the employer must determine whether
(1) there is a direct relationship between the criminal offense and the employment sought
(2) if there would be an unreasonable risk to property or the safety and welfare of specific individuals or the general public if the applicant were employed. The employer must run an assessment of 8 factors (FCA factors):
- New York’s public policy stressing the importance of encouraging the employment of persons who were previously convicted of criminal offenses;
- The specific duties and responsibilities necessarily related to the licensure or employment sought or held by the individual at issue;
- The bearing, if any, of the crime for which the individual was convicted on the individual’s fitness or ability to perform the duties of the job;
- The time elapsed since the crime was committed;
- The age of the individual at the time the crime was committed;
- The seriousness of the offense;
- Any information produced by the individual regarding their rehabilitation and good conduct; and
- The employer’s legitimate interest in protecting property and the safety and welfare of specific individuals or the general public.
This analysis was not required to be conducted with respect to an employee or applicant who was the subject of a “pending arrest”, e.g., an employee who had been arrested but which matter had not be resolved.
When the amendment takes effect, New York City employers will be:
- Required to conduct the Fair Chance Process when seeking to act on a pending arrest or other criminal accusation;
- Required to conduct the Fair Chance Process when seeking to rescind a promotion or transfer, or when ending the employment of a current employee;
- Required to apply the Fair Chance Act to independent contractors and freelancers; and
- Prohibited from inquiring about specific types of criminal history at any point, including the employee/applicant’s (1) violations, (2) non-criminal offenses, (3) non-pending arrests or criminal accusations, (4) adjournments in contemplation of dismissal, (5) youthful offender adjudications or (6) sealed offenses.
The law also creates new factors to review as part of the Fair Chance Process when employers are making any assessment specifically based on (1) employee convictions that occur during employment or (2) pending arrests or criminal charges for both applicants and employees that occur at any time. The new factors to be considered are:
- New York City’s policy to overcome a stigma toward and unnecessary exclusion of persons with criminal justice involvement in employment;
- The specific duties and responsibilities necessarily related to the employment held by the person;
- The bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant’s or employee’s fitness or ability to perform one or more such duties or responsibilities;
- Whether the person was 25 years of age or younger at the time of the occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations; and
- Any additional information produced by the applicant or employee, or produced on their behalf, with regard to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.
Employers may place current employees on unpaid leave for a reasonable amount of time when conducting the Fair Chance Process assessment.
This is the latest in a series of legislative measures to arise from the "Ban the Box" movement which attempts to reduce an employers' accessibility to criminal records until later on in the application process.
To date, 36 states have adopted some form of ban the box legislation.
