New York City’s Fair Chance Act

March 25, 2022

There are clear public policy benefits to NYC’s strict approach to employment related criminal background checks. By requiring employers to extend a condition offer before criminal background checks are conducted, and by permitting the employer to only withdraw that offer if there is a direct relationship between the potential hire’s criminal background and the position, or where to do so would present an “unreasonable risk” to the welfare or safety of any individual or the general public, the City gives those with a criminal record, a good chance of returning to employment.

Recently, New York City has gone even further by passing the Fair Chance Act, which is designed to ensure that neither a new hire’s (or existing employee’s) pending charges or non-criminal record can be used as an excuse to withdraw an offer (or terminate employment). Specifically, for potential hires, it requires employers to run background checks using the below sequence:

1) Perform all non-criminal checks before extending an offer of employment. Any criminal background information that comes to light during this stage must be sequestered.

2) Once the non-criminal checks are complete and an offer of employment has been extended, the employer can conduct a criminal background check. The employer can only withdraw the employment offer if there is a direct relationship between the role and the potential hire’s criminal history (e.g. a conviction of theft for a cashier role), or if hiring the employee would create an unreasonable risk to the welfare/safety of the company’s property, an individual, or the general public. The decision to withdraw the offer must be a reasoned one that takes into account eight factors (known as the 23-A factors - which include criteria such as the number of convictions, seriousness of the convictions, and amount of time that has passed since the last conviction). This analysis the must be provided in writing to the potential hire, together with a copy of the criminal history the employer accessed, and a statement to the effect that the potential hire has five days to respond to the employer’s assessment.

For existing employees or contractors being terminated for a criminal conviction, or for job applicants with pending criminal charges

Before a decision can be made to withdraw an offer of employment (in the case of a job applicant) on the basis of pending criminal charges, or to terminate an employee (in the case of a current employee or contractor) based on a pending criminal charge or a conviction, a new set of factors must be examined. These are similar to the 23-A Factors, though not identical, with the main difference being age - under the Fair Chance Act, the employer must taken into account the fact that the individual was younger than 25 when committing the offense, while the Fair Chance Factors merely state that the individual’s age at the time the crime was committed must be considered. As with the 23-A factors, the employer must be provide the job applicant/employee/contractor with the written analysis, a copy of the criminal record check and provide an opportunity for the employee to respond.