The New York City Commission on Human Rights (the Commission) has released updated guidance with respect to the Fair Chance Act. New York City had amended the Fair Chance Act last year and the changes will come into force on July 29, 2021.
The key takeaways from the guidance are:
- Employers have to extend the law to existing employees and independent contractors (it previously only applied to applicants for employment); and
- Employers have to extend the fair chance process to pending arrests (it previously only applied to past criminal history).
- Expanding the types of criminal history about which an employer may never inquire;
- Creating a new set of Fair Chance factors to apply under certain circumstances when analyzing the criminal history; and
- Providing an individual with an opportunity to respond before an employer acts on an apparent misrepresentation about criminal history.
- The employers should proceed with great caution in building background check processes and procedures and administering the same.
- Employers should make the receipt and analysis of criminal history the very last step in the decision-making process. They should be prepared to start an applicant’s employment or contactor’s engagement, or effectuate the transfer or promotion of the employee, but for the receipt and review of their criminal history.
- Employers who want to rescind an offer of employment, transfer or promotion, or take an adverse action against an employee, will have to show very specifically, via a written, individualized analysis, which it shares with the individual, why the individual’s criminal history disqualifies them from employment or the new opportunity.
- In running that analysis, employers cannot ignore evidence and other information provided by the individual about their criminal history. Employers must also engage with the applicant/employee where they seek to act based on a belief that the applicant/employee has misrepresented their criminal history.
*Tanvi Singh, Editorial Assistant has reported this brief.
