Hunton Employment & Labor Perspectives

The New York City Commission on Human Rights recently amended its rules to establish certain definitions and procedures applying the Fair Chance Act.  The Act makes it unlawful to discriminate against job applicants and employees on the basis of criminal history, and is particularly important for employers for two reasons: (1) it applies not only to criminal background checks performed by third-party vendors but also to checks performed entirely by the company, and (2) out-of-state non-employers may be held liable for aiding and abetting violations of the Act.  For more on this latter point, read our prior post on the New York Court of Appeals opinion in Griffin v. Sirva, Inc.

The most important aspect of the new rules is that they establish “per se” violations.  “Per se” violations are actions or inactions that, standing alone, constitute a violation of the city’s Administrative Code, regardless of whether any adverse employment action was taken or any actual injury was incurred, unless an exemption applies.  These “per se” violations are:

1. Declaring, printing, or circulating, or causing the declaration, printing, or circulation of, any solicitation, advertisement, policy or publication that expresses, directly or indirectly, orally or in writing, any limitation or specification in employment regarding criminal history. This includes, but is not limited to, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”
2. Using applications for employment that require applicants to either grant employers permission to run a background check or provide information regarding criminal history prior to a conditional offer.
3. Making any statement or inquiry relating to the applicant’s pending arrest or criminal conviction before a conditional offer of employment is extended.
4. Using within the City a standard form, such as a boilerplate job application, intended to be used across multiple jurisdictions, that requests or refers to criminal history. Disclaimers or other language indicating that applicants should not answer specific questions if applying for a position that is subject to the Human Rights Law do not shield an employer from liability.
5. Failing to comply with the requirements of section 8-107(11-a) of the Human Rights Law, when they are applicable: (1) to provide the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history; (2) to share with the applicant a written copy of the employer’s Article 23-A analysis; or (3) to hold the prospective position open for at least three business days from the date of an applicant’s receipt of both the inquiry and analysis.
6. Requiring applicants or employees to disclose an arrest that, at the time disclosure is required, has resulted in a non-conviction (as defined in the Rules).

Further, the new rules specify that providing a written copy of the “inquiry” into an applicant’s criminal history requires the employer to provide a complete and accurate copy of each and every piece of information relied on to determine whether the applicant has a conviction history. This includes, but is not limited to, copies of consumer reporting agency reports, print outs from the Internet, records available publicly, and written summaries of any oral conversations, specifying if the oral information relied upon came from the applicant.

This post highlights just a few aspects of the new rules.  To read them in their entirety, click here.