New York City’s “Fair Chance Act” went into effect this week on October 27. The law prohibits employers from asking about criminal history on an initial employment application and at any time prior to extending a conditional offer of employment. It also prevents employers from conditioning, or limiting employment based on an applicant’s arrest or conviction history in job advertisements.
The law does not prevent background checks, but controls the timing of them, which now must come after the conditional offer of employment. Also, if an employer conducts a background check and wishes to use the results against the applicant, it must continue to go through the multi-factor analysis of Article 23-A of the New York State Correction Law to determine whether a sufficient nexus exists between the offense and position sought. However, in addition to this analysis, it must also furnish to the applicant, a copy of the criminal history, a written Article 23-A analysis, and allow the applicant at least three business days to respond while holding the position open.
The New York City Commission on Human Rights (“NYCCHR”) recently published a form that employers may use in order to comply with the requirement to furnish its Article 23-A analysis. According to the NYCCHR, the “Fair Chance Act Notice” form can be adapted as long as “the material substance does not change.”
Employers in New York City should either begin using the NYCCHR’s proposed form, or work with their counsel to develop a new form that is substantially similar.
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