The New York City Human Rights Law (NYCHRL) was recently amended by Local Law 4, which took effect on July 29, 2021. The Amendment expands the protections of the 2015 Fair Chance Act (FCA) to New York City job applicants whose criminal history includes unsealed violations and unsealed non-criminal offenses, as well as to cover current employees and pending cases. The Amendment’s stated objectives are to further level the playing field and reduce the potential for adverse employment consequences in NYC communities that are disproportionally impacted by the criminal legal system and to ensure applicants are assessed based on their qualifications.
Pursuant to the NYCHRL employers may not make statements concerning criminal histories in job postings. An employer may not consider an applicant’s criminal history until after the applicant’s job qualifications have been assessed and a conditional offer of employment is made. No inquiry may be made concerning criminal history in the interview process. Inadvertent disclosures made by the applicant should not be used as a pretense for further inquiry. An applicant may be disqualified, however, based on an intentional misrepresentation of their criminal history or pending cases.
A “conditional offer of employment,” as defined in the Amendment, may only be revoked after the results of a criminal background check, the results of a medical exam (if applicable) or upon some other information that the employer could not have known before the conditional offer was made. In that instance, the employer must demonstrate that, based on the information, the conditional offer would not have been made regardless of the result of the criminal background check.
After the conditional offer is made, the employer may consider an applicant’s criminal history within the “Fair Chance Analysis” as outlined below. Under the Amendment, before making an employment decision NYC employers must weigh seven “Fair Chance Factors” modeled after the nine points found in section 753 of Article 23-A of the New York Correction Law. The factors considered in the Fair Chance Analysis are as follows:
- NYC’s policy of overcoming the stigma attached to employment of those with criminal justice involvement;
- The specific duties related to the employment;
- The bearing of the offense on the applicant’s ability to perform the duties of employment;
- Whether the applicant was under 25 years old at the time of the offense;
- The seriousness of the offense;
- The legitimate interest of the employer in protecting the welfare of specific individuals or the general public; and
- Any additional information from the application with regard to rehabilitation and good conduct.
These factors also apply to cases pending adjudication.
The Amendment further prohibits employers from seeking information about or basing an adverse employment action or limitation based on an applicant’s non-conviction. The term “non-conviction” can be applied to situations involving an arrest with no follow-up charges, a decision not to prosecute an arrest, a dismissal, an acquittal, a case where the application was a youthful offender, or a conviction for a violation (including trespass, disorderly conduct, failing to respond to an appearance ticket, loitering, harassment in the second degree, disorderly behavior, etc.).
If an employer wishes to withdraw an offer of employment after the Fair Chance Analysis, the employer must disclose to the applicant a copy of any criminal history inquiry, as well as a copy of the applicant’s Fair Chance Analysis. The time period for an applicant to respond to an employer’s concerns has been extended to five business days. During the response period, the employer may not permanently place another person in the applicant’s prospective position.
Upon a withdrawal of a conditional offer, an employer should be prepared to demonstrate that there is either a direct relationship between the applicant’s prior conviction history or pending case and the job sought or that employing the applicant would involve an unreasonable risk to the safety or welfare of specific individuals or the general public. An employer that fails to demonstrate either exception will be liable for discrimination under the NYCHRL.
The recent NYCHRL Amendment highlights the growing trend requiring employers to be focused on an applicant’s job qualifications and to isolate the considerations of an applicant’s criminal history until after a conditional job offer is extended. The New York City public policy considerations are consistent with extending equal opportunities to all individuals in the employment application process.