Changes to the NYC Fair Chance Act

On July 29, 2021 The New York City Human Rights Local Law 4 of 2021 amended the NYC Fair Chance Act with an aim to provide further protection for candidates with criminal history on their background check. This will affect the way you hire and background check prospective candidates. The New York City Human Rights Commission enforces the NYC Fair Chance Act and has provided new guidance on the background check process.

Human Rights Law Changes

Full details to NYC Fair Chance Act changes can be found here. The fair chance act already required criminal background checks to be delayed until a conditional offer of employment was made to the candidate. But under the new guidance, all non-criminal background screening are conducted prior to making a conditional offer of employment. Criminal background checks must remain the last step of the hiring process.

Changing the Way You Background Check

If your organization employs workers in New York City, or if your business is based in New York City, you must change your current background screening practices to ensure compliance to the NYC Fair Chance Act. A two-phase approach to your background screening process ensures compliance to the new regulations as well as avoiding unintentional discrimination.

Phase 1 – Prior to Conditional Offer of Employment

Run all non-criminal background screening products including reference checks, employment verification, education verification, civil records searches, drug testing, credit reports (if applicable to job position). It is important to remember not to conduct searches that may contain criminal information, such as a Motor Vehicle Record Search.

Phase 2 – After Conditional Offer of Employment

All background check products that may contain criminal information may now be performed. This includes Motor Vehicle Records (if applicable to job position), Medical Registries, National Wants and Warrants, County Criminal, State Criminal, Federal Criminal Record Search, etc.

Adverse Action

If, you find yourself in the situation where you would like to withdraw the conditional offer. There is another process you are required to follow…Adverse Action.

Adverse Action has three stages:

1. Pre-Adverse Action Letter
2. Waiting (How long an employer must wait is defined as a “reasonable amount of time.”)
3. Post-Adverse Action Letter
   
   

The Pre-Adverse Action Letter informs the applicant that an employer is going to take adverse action. Similarly, the Post-Adverse Action Letter advises the applicant that the final decision not to pursue employment has been made.  Both the Pre- and Post-Adverse Action Letters have the same four components, as listed below.

1. A letter stating adverse action has or will be taken that advises the applicant the employer made the decision (not the CRA) and provides the CRA’s contact information.
2. A copy of the applicant’s Summary of Rights Under the FCRA
3. A copy of the applicant’s background report
4. A dispute form
   
   

Choice Screening helps our clients remain compliant when taking Adverse Action by offering Pre-Adverse Action and Post-Adverse Action services that are routinely audited and overseen by our internal Compliance Director. Click here for more information on Adverse Action Letter Services.

This blog is not all-encompassing and is for informational purpose only. It is not intended to provide legal advice. Ensure you are consulting with a qualified employment attorney for legal advice.