New York, N.Y. (April 5, 2021) – The New York City Human Rights Law (NYCHRL) is considered to be one of the most progressive discrimination laws in the nation. Earlier this year, the New York City Council passed a bill which expands the scope of the New York City Fair Chance Act (FCA), more commonly known as the “ban-the-box” law. The FCA prohibits most New York City employers from inquiring about an applicant’s criminal history until after the employer extends a conditional offer of employment. The amended FCA expands protections for both applicants and employees with criminal backgrounds, including convictions, charges and arrests. The amendments go into effect on July 28, 2021.

Existing FCA Regulations

The FCA initially took effect in October 2015 as an amendment to the NYCHRL. The current FCA regulations incorporate existing New York state criminal background provisions, including Article 23-A of the New York Correction Law. The regulations set forth eight factors that employers are required to assess when considering taking an adverse action against an applicant based on arrest and conviction history.

Amended FCA Regulations

The new amendments add “relevant fair chance” factors that expand the FCA’s coverage and extend the law’s protections to applicants and employees with pending arrests and employees with criminal convictions. The relevant fair chance factors to be considered are as follows:

  1. New York City’s policy to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment.
  2. The specific duties and responsibilities necessarily related to the employment held by the person.
  3. The bearing, if any, of the criminal offense for which the applicant or employee was convicted, or that is alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities.
  4. Whether the person was 25 years old or younger at the time the criminal offense at issue occurred.
  5. The seriousness of the offense.
  6. The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public.
  7. Any additional information produced by the applicant or employee, or produced on their behalf, as to their rehabilitation or good conduct, including a history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

Under the current FCA, an employer may withdraw a conditional job offer if there is a relationship between the prior conviction and the job being sought. However, under the amended FCA, the employer may only rescind a conditional job offer after considering the fair chance factors described above and after determining “that either (i) there is a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

The law is also broadened with respect to the scope of “criminal history,” which will now include pending arrests and other criminal accusations. As a result, employers are prohibited from taking adverse employment actions against an applicant or an employee for violations, non-criminal offenses, non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications or sealed offenses, if disclosure of such matters would violate the New York State Human Rights Law.

Failure to comply with the law subjects employers to the full range of penalties available under the NYCHRL, including possible lawsuits in which compensatory and punitive damages and attorneys’ fees can be awarded.

Employer Takeaway

Employers should revise their policies and procedures to comply with the FCA amendments and train managers, supervisors and human resources personnel about changes made to its policies, including what questions can be asked at interviews and what information can be included in job listings.