On December 10, 2020, the New York City Council New York State Correction Law, Article 23-A, for analyzing whether an employer may “take adverse action against any applicant” based on the applicant’s arrest and conviction history. The new amendments add “relevant fair chance factors” that extend the FCA’s coverage to additional scenarios beyond an applicant’s arrest and conviction history. The newly enacted relevant fair chance factors apply to (i) applicants with pending arrests, (ii) employees pending arrests, and (iii) employees with criminal convictions. The new FCA relevant fair chance factors are:
The new relevant fair chance factors in the FCA are the same ones previously implemented in the FCA regulations, with one exception. Instead of eight factors, there are seven FCA relevant fair chance factors—deleting from consideration “[t]he time that has elapsed since the occurrence of the … applicant’s criminal conviction” factor. While this factor was deleted in the FCA’s relevant fair chance factors, employers may still want to consider that factor as part of the New York State Correction Law Article 23-A factors—which otherwise are almost identical to the FCA relevant fair chance factors and apply in New York City.
The amended FCA requires that employers affirmatively request from applicants information relating to the relevant fair chance factors. While this obligation is new to the FCA ordinance itself, the regulations implementing the FCA already contained this requirement.
Under the FCA, employers have been permitted to inquire about and consider only pending actions. Under the amendments, an action that has been adjourned in contemplation of dismissal is not considered a “pending action” (but seemingly a nonpending action) “unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution.” As a result, employers may not ask about adjournments in contemplation of dismissal unless they have been restored for further prosecution.
Pursuant to the amendments, unless specifically required by law, employers cannot make any inquiry or consider the following:
The pre-amendment FCA prohibits consideration of nonpending arrests; criminal accusations; adjournments in contemplation of dismissal (unless revoked and restored to the docket, as noted above); youthful offender adjudications; and convictions sealed pursuant to certain sections of the criminal procedure law. The new FCA amendments close the gap, also prohibiting inquiries into these types of records. Once the amendments become effective, employers may not inquire about or consider the types of records listed in this subheading.
The amendments clear up any confusion as to whether the FCA applies to employees or only to applicants. It applies to both. The amendments fill in a gap left open by the original FCA. The original FCA applied to arrests and convictions for applicants, but perhaps not for employees. The amendments will apply the FCA to (i) pending arrests involving applicants, (ii) pending arrests involving employees, and (iii) convictions of employees.
The amendments add a definition of “conditional offer of employment” (consistent with the one already in the accompanying regulations) as “an offer of employment, promotion or transfer which may only be revoked based on one of the following”:
Most typical employer screening items or activities (e.g., drug screenings, employment and reference checks by consumer reporting agencies, etc.) will not fall into the third “other information the employer could not have reasonably known before making the conditional offer” category. This significant definitional addition may mean that New York City employers that generally use other, post-conditional-offer activities (e.g., drug screens) as part of their assessments must implement two-tiered screenings in which employers first receive noncriminal reports (e.g., drug screens), just before extending conditional offers. Then, after reviewing other information (e.g., drug screens, etc.) and before making conditional offers, employers would receive and review criminal history reports (and the few other items noted above—e.g., medical exam results) following the conditional offers.
Employers may want to ensure that their background check processes account for these changes in New York City law once they are effective.
The FCA had left open the question of whether employers were permitted to take adverse action against applicants and employees who had made intentional misrepresentations regarding their arrest or conviction histories. The amendments clarify that an employer may “tak[e] adverse action against an applicant or employee who is found to have made intentional misrepresentations regarding their arrest or conviction history, provided that such adverse action is not based on a failure to divulge information that a person may not be required to divulge … and provided further that the employer provides the applicant or employee with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and gives the person a reasonable time to respond.”
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