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Revisions to the Fair Chance Act affect organizations that hire individuals who live or work in New York City.

Conditional Offers Before Criminal Background Checks

A key update to the Fair Chance Act notes that employers may not review or consider convictions before they extend a conditional offer. They cannot ask about criminal records on job applications or during interviews.

Organizations should confirm an applicant is eligible prior to making a conditional offer. This can include ordering a consumer report that features products like Social Security Number Traces, References and Employment, Education, Credential or other Verifications.

Prior to obtaining a consumer report, employers must provide Disclosure and Authorization documents. The Disclosure cannot reference criminal records, Motor Vehicle Records or use the term background check (consumer report or investigative report should be used instead).

Based on the results of interviews and an initial consumer report, employers may choose to extend a conditional offer. At that point they can opt to find out if the candidate has criminal convictions.

Before Running Criminal Searches

Employers must provide a second Disclosure and Authorization form before ordering a criminal background check or driving records. This document can reference criminal records, Motor Vehicle Records and use terms such as background check.

Non-Convictions Are Protected

The revised Fair Chance Act clarifies that employers may not consider non-convictions. It states that unless “specifically required or permitted by law, all private employers and most public-sector employers are prohibited from seeking information about, expressing or implying an employment limitation related to, or basing an adverse employment action on, a person’s non-conviction.”

NYC legislators created a “non-exhaustive list of the types of criminal histories that qualify as non-convictions” to help employers better understand what types of records cannot be considered.

Adverse Actions

After reviewing a criminal background check, employers may think about taking an adverse action. First, they must go through all relevant Fair Chance Factors. Before revoking a conditional offer, they should be able to show that:

• There is a direct relationship between the applicant’s conviction history or pending case and the prospective job; or
• Employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

Summary

To comply with the Fair Chance Act, employers that hire individuals who live or work in New York City:

• May not make statements related to criminal history on job postings or recruitment materials (such as “a criminal background check is required”).
• May not check an applicant’s criminal or driving records before extending a conditional offer.
• Prior to making a conditional offer, they should assess the person’s qualifications.
• Provide an initial Disclosure that does NOT mention criminal records, Motor Vehicle Records or background checks. They must also receive written consent.
• Provide a second Disclosure before running a criminal background check. They must again obtain written consent.
• May not consider non-convictions.
• Must evaluate applicants via the Fair Chance Analysis and be able to show a direct relationship between an applicant’s conviction history or pending case and the prospective job before revoking a conditional offer.

Consult With Legal Counsel

Backgrounds Online does not provide legal advice of any kind. To ensure compliance with the Fair Chance Act and other laws that are in affect where you operate, please consult with legal counsel.

Learn more about the updated Fair Chance Act.

Running Background Checks

Numerous states have Ban the Box and other Second Chance laws in place to help people with criminal histories re-enter society and avoid recidivism. Employers everywhere are strongly encouraged to run comprehensive background checks before bringing on employees, contractors or volunteers. These reports help organizations make informed decisions, create safe workplaces and conduct due diligence.

When you need background reports, please contact us. Our experienced team makes efforts to keep up with employment laws and can help you customize background check packages for any position. We are available to assist you Monday through Friday from 5am to 6pm PT.