Hunton Employment & Labor Perspectives

In January 2021, New York City amended the Fair Chance Act to expand protections for both applicants and employees with criminal histories.  The amendments take effect July 29, 2021, adding additional protections for workers in the state.  Prior to the amendment, NYC’s Fair Chance Act prohibited employers from making an inquiry about an applicants’ criminal conviction records until after a conditional offer of employment is extended.  Then, an employer was required to balance a variety of factors to determine job-relatedness of the conviction.

The amendment to the NYC Fair Chance Act creates more stringent requirements on the evaluation process an employer must undertake before taking an adverse job action against an applicant or employee. An employer may only take an adverse action if there is either a direct relationship between the criminal history and the job, or if the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.  To determine whether there is such a direct relationship or unreasonable risk, an employer must consider the following factors:

• New York City’s policy to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in employment;
• The specific duties and responsibilities necessarily related to the employment;
• The bearing, if any, of the criminal offense or offenses on the individual’s fitness or ability to perform one or more job duty or responsibility;
• The age of the applicant when the events that led to the conviction occurred;
• The seriousness of the offense or offenses;
• Any additional information produced by the individual, or on their behalf, in regards to their good conduct, including history of positive performance and conduct on the job and in the community , or any other evidence of good conduct;
• The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public; and
• If the individual has a certificate of relief from disabilities or a certificate of good conduct, employers must presume that they are rehabilitated.

These factors are nearly identical to those in place before the Amendments, but now employers are affirmatively required to ask applicants to provide information relevant to each factor.  Additionally, employers must provide a written copy of this analysis to the applicant or employee and permit them a reasonable time to respond.  Nothing in the NYC law precludes employers from taking adverse action against an applicant or employee who is found to have made misrepresentations about their conviction history, provided that the adverse action is not based on a failure to divulge information that a person is not required to.

New York City leads the trend of cities across the country limiting employers’ reliance on criminal histories when making employment decisions. Employers should review their hiring policies for employees located in New York City to ensure that the necessary multi-factor inquiry is undertaken to evaluate applicant and employees’ criminal histories.