New York City’s Fair Chance Act (FCA), which took effect in 2015, bars employers from asking about a job applicant’s criminal history during the initial stages of the application process. The FCA draws extensively from state law provisions that outline a procedure employers must follow when considering a job applicant’s arrest or conviction records later in the hiring process. A bill passed by the New York Legislature earlier this year amends the New York State Human Rights Law (NYSHRL) to expand the list of items that employers may not inquire about or act upon with regard to criminal history. The new provisions will take effect on July 11, 2019. New York City has updated its enforcement guidance on the FCA in anticipation of the new state law provisions.
Employers in New York City may only inquire about an applicant’s arrest or conviction history once they have made a conditional offer of employment. N.Y.C. Admin. Code § 8-107(11-a)(b). Even after employers obtain criminal history information, they are limited in their ability to use it to make any adverse decision. The FCA requires employers to follow the procedures outlined in Article 23-A of the New York Corrections Law. These state-law provisions identify factors that employers must consider in assessing an applicant’s criminal history, such as the relevance of the criminal offense to the job sought. If an employer makes an adverse decision, e.g. a decision not to hire the person, because of their criminal history, they must provide a written statement to the applicant explaining their decision, and they must give the applicant an opportunity to respond.
The NYSHRL bars employers from inquiring about or considering certain types of criminal history at any point in the application process. See N.Y. Exec. L. § 296(16). Currently, this includes criminal proceedings that were terminated by the state, followed by a sealing of the file. It also includes cases in which the job applicant was adjudicated as a youthful offender, and other proceedings in which the records have been sealed. New York City has adopted these standards as part of city law. N.Y.C. Admin. Code § 8-107(11). The Governor of New York signed S. 1505-C into law on April 12, 2019. The new law amends § 296(16) to add “an order adjourning the criminal action in contemplation of dismissal” (ACD) to the list of items that employers may not consider. N.Y. L. 2019, c. 55, pt. II, subpt. O, § 2.
In late May 2019, the New York City Commission on Human Rights (CHR) revised its guidance on FCA enforcement to include the provisions of the new state law. Beginning on July 11, 2019, employers must notify job applicants that they should not disclose any criminal case that ended in an ACD. Employers should never inquire about ACDs. Law enforcement agencies are not bound by these provisions with regard to police or peace officer positions, but the CHR states that these rules do apply for people applying for civilian positions.
The employment lawyers at Phillips & Associates represent New York City job applicants and employees, helping them assert claims under city, state, and federal law. To schedule a free and confidential consultation with a member of our team, please contact us today online or at (212) 248-7431.