The amendments also expand the FCA’s protections to a job applicant or employee’s arrest or pending criminal accusation.
Update: This Alert has been revised to reflect the passage and implementation of the New York City Fair Chance Act.
On December 10, 2020, the New York City Council passed a bill expanding employment protections under the New York City Fair Chance Act, also known as the ban-the-box law (FCA). The amendments impose hurdles for an employer taking adverse action against job applicants and current employees who have pending criminal charges or arrests, or convictions arising during employment. These new amendments take effect July 29, 2021.
The amendments require an employer to make an individualized assessment of the relationship between the charged conduct and the job, using a set of criteria much like the considerations made relating to an individual’s conviction history. The amendments also prohibit an employer from considering an adjournment in contemplation of dismissal or arrest or criminal accusations that do not result in a conviction or are no longer pending.
Existing FCA Requirements
Currently, the FCA incorporates the requirements of the New York State Human Rights Law and the New York Corrections Law, requiring employers to consider eight factors to decide whether a job applicant’s conviction history directly relates to the job applied for, or if the applicant would create an unreasonable risk to property, persons or the general public if hired. The FCA also (i) prohibits inquiries concerning a job applicant’s criminal history until a conditional offer of employment has been made, (ii) requires employers to provide the job applicant with a notice and written analysis of the eight FCA factors, and (iii) provides the job applicant with three business days to respond before a conditional offer of employment can be withdrawn.
Expansions to the FCA
The amendments significantly expand the employment protections of the FCA by imposing the following additional requirements:
Criminal Convictions During Employment
The amendments expressly prohibit adverse employment actions based on an employee’s conviction of a criminal offense, or by reason of finding the person lacks “good moral character” based on such criminal conviction, unless the employer considers the FCA factors and determines (i) the conviction has a direct relationship with the employment held by the person, or (ii) continuation of employment would involve an unreasonable risk to property or to the safety or welfare of any person or the general public. The seven FCA factors applied for criminal convictions during employment are similar to, but differ in a few ways from, the eight factors employers have used to analyze a job applicant’s conviction history.
First, for evaluating a job applicant’s criminal conviction, the employer must consider the length of time since the offense; for criminal convictions that have occurred during employment, there is no such consideration. Second, for evaluating a job applicant’s criminal conviction, the employer must consider the age of the person at the time of the criminal offense; for criminal convictions that have occurred during employment, the employer must consider whether the person was 25 years of age or younger at the time of the criminal offense. Third, the requirement to consider evidence of rehabilitation and good conduct has been expanded to require employers to consider “any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or other evidence of good conduct.”
After considering the seven FCA factors, an employer follows the same process as before and determines whether (i) there is a direct relationship between the criminal conviction and the employment held by the person, or if (ii) the continuation of employment would involve unreasonable risk to property or to the safety or welfare of specific persons or the general public. An employer is required to provide the employee with an FCA notice setting forth the employer’s analysis, and the employee has at least three business days to respond and provide any additional information for consideration. It is only after this that an employer can take an adverse action against an employee who has been convicted during employment. Note, however, that placing an employee on unpaid leave for a reasonable time while the employer undergoes the process of considering the FCA factors and making a determination is allowed and not deemed to be an adverse action.
Arrests and Pending Criminal Accusations Preceding and During Employment
The amendments also expand the FCA’s protections to a job applicant or employee’s arrest or pending criminal accusation. The same analysis and process for when an employee is convicted during employment applies when a job applicant or employee is arrested or faces a criminal accusation that is pending.
Adverse Action for Making Intentional Misrepresentations
Employers may take adverse action against a job applicant or employee who makes intentional misrepresentations regarding their arrest or conviction record, provided that (i) the adverse action is not based on a failure to provide information that the person was not required to provide, (ii) the employer provides the job applicant or employee with a copy of the documents upon which the determination that an intentional misrepresentation was made; and (iii) the job applicant or employee is provided a reasonable time to respond.
Non-Pending Arrests and Criminal Accusations and Disposition of Charges that an Employer May Not Consider
An employer may not inquire about, or take an adverse action based on, non-pending arrests and criminal accusations, adjournments in contemplation of dismissal unless the matter is restored to the calendar for adjudication, youthful offender adjudications or sealed convictions.
Violations and Non-Criminal Offenses
An employer also may not inquire about, or take adverse action based on, a job applicant or employee having been convicted of (i) a violation, as defined under the New York Penal Law as an offense other than a traffic infraction for which a sentence to a term of imprisonment in excess of 15 days cannot be imposed, or (ii) a conviction of a non-criminal offense, as defined by a law of another state.
Codifying Existing Rule Against Revoking Conditional Offer
The amendments codify an existing rule in the regulations disseminated by the New York City Commission on Human Rights, allowing an employer to revoke a conditional offer of employment only if it is based on (i) the results of a criminal background check performed after the FCA evaluation process has been followed, (ii) the results of a medical exam permitted by the American with Disabilities Act, or (iii) any other information the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, the employer would not have made the offer of employment regardless of the results of the criminal background check.
Requirement to Request Information Relating to FCA Factors
The amendments also codify and expand on the regulations requiring employers to solicit evidence of rehabilitation and good conduct by requiring employers to solicit information concerning all FCA factors.
What This Means for Employers
Employers must prepare for the expansion of the FCA by modifying their current practices and training managers regarding the rules for addressing pending criminal matters. Given the expansive changes to the FCA, employers are encouraged to consult with an employment attorney to incorporate the amendments into their practices.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Maria Cáceres-Boneau or any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.