Searches for publicly available or government records, including through a third party, such as a consumer reporting agency, the internet, or private databases, for a person's criminal history. Disclose to the applicant a written copy of any inquiry it conducted into the applicant's criminal history; Share with the applicant a written copy of its Fair Chance Analysis; and. Second, the NYCHRL provides "fair chance" protections to workers with criminal convictions and pending cases, limiting when and to what extent most employers may consider workers' criminal history and ensuring that workers are not arbitrarily disciplined or excluded from employment opportunities when they do not pose an unreasonable risk of harm and there is no direct relationship between their criminal history and the job. N.Y. To form may also be adapted to can employer's preferred format, in long as the material substances does not change. This time period begins running when the employee receives both the inquiry and Notice. New York City - Fair Chance Act Form. Law 750(5) (defining "employment"). IX Positions and Actions Exempt from Certain Protections Under the NYCHRL. New York Criminal Procedure Law 160.59 allows a person to apply to a court for sealing of certain records after 10 years. Disclose to the employee a written copy of any inquiry it conducted into the employee's criminal history; Share with the employee a written copy of the employer's Fair Chance Analysis; and. Solicitations, advertisements, and publications may include people-first language that welcomes those with criminal records to apply. The time which has elapsed since the occurrence of the criminal offense or offenses. Disclosing the Inquiry The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an employee has a criminal record, along with the date and time the employer accessed the information. Before a temporary help firm withdraws a conditional offer of employment after discovering an applicant's conviction history, it must follow the Fair Chance Process, according to Part V(E) of this Guidance. Code 8-102 (including City's policy in the definition of "relevant fair chance factors"). Code 8-107(11)(a); N.Y. Exec. Correct. If an applicant has both a conviction history and a pending case, the employer must separately analyze each according to the relevant set of factors required under the law. The following scenarios unfold. Once an employer knows about an applicant's conviction or pending case, ask them about the circumstances that led to it and begin to gather information relevant to each Article 23-A Factor for prior convictions, and, for pending cases, each New York City Fair Chance Factor. 85 (2005). Discrepancies can arise despite the absence of an intentional misrepresentation because, among other reasons, the applicant incorrectly assumed a conviction was too old to be considered or was not relevant to the employer's assessment or the job; the applicant confused the charge initially filed against them with the one for which they were convicted; or because of an error in the criminal history record. Bus. It ensures that all New Yorkers have a fair chance to compete for a job. Nearly all reported cases concern public agencies' employment decisions, which cannot be reversed unless "arbitrary and capricious." After receiving additional information from an applicant, an employer must examine whether the new information changes the employer's Fair Chance Analysis. Next Flipbook. Admin. Download this brochure below ( Adobe download required). Any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community. Law 296(16) (covering any "conviction which is sealed pursuant to section 160.59 or 160.58 of the criminal procedure law"). The results of a criminal background check conducted in accordance with chapter 1 of title 8 of the Administrative Code; The results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. The Commission characterizes these barriers as either mandatory or discretionary. A non-exhaustive list of the types of criminal histories that qualify as non-convictions is provided in Part IV. Correct. Mandatory barriers require an employer to deny applicants or take designated action against employees with certain specified criminal histories and afford no discretion to the employer. Employers who accept placements from temporary help firms and who wish to inquire about temporary workers' criminal histories must also follow the Fair Chance Process. Examples of prohibited statements and inquiries include, but are not limited to: The NYCHRL does not prevent employers from looking into other aspects of an applicant's background and experience to verify their qualifications for a position, including asking for resumes and references and performing general internet searches (e.g., Google, LinkedIn, etc.). The seriousness of the offense or offenses. A misdemeanor is an offense, other than a "traffic infraction," for which a person may be incarcerated for more than fifteen days and less than one year. This section discusses in greater detail the specific requirements that employers must follow if they wish to consider conviction histories or pending cases during the hiring process. The Notice is available on the Commission's website, Determines that there is a direct relationship between the alleged or convicted conduct and the job; or, Shows that continuing to employ the person "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.". Employers who rely on oral information must provide a written summary of the portion of their conversation that relates to criminal history. 12112(d)(3). The public policy of New York State to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. The duties and responsibilities for a job should be clearly defined before a conditional offer is extended and there is a rebuttable presumption that an employer that alters the job's duties and responsibilities in a manner that serves to disqualify the applicant after making a conditional offer of employment has done so as a pretextual basis for unlawful discrimination. Where an employer properly bases its decision to deny employment on an intentional misrepresentation by the applicant, it is not required to perform the Fair Chance Analysis. Run a criminal background check and/or, after giving the applicant notice and getting their permission. The employer may treat non-criminal information on the driving abstract as a form of non-criminal information that the employer could not have reasonably known before the conditional offer. The NYCHRL allows an applicant to refuse to respond to any prohibited inquiry or statement. N.Y.C. A covered employer may never, however, disqualify an applicant based on their representations about non-convictions.74. Allow the applicant a reasonable period of at least five business days from receipt of the inquiry and analysis to respond to the employer's concerns. Employers Cannot Inquire About Criminal History During the Interview Process Unless an exemption applies, the NYCHRL prohibits employers from making any inquiry or statement related to an applicant's criminal history until after a conditional offer of employment. Seyfarth Synopsis: The New York City's Fair Chance Act amendments are scheduled to go into effect on July 29, 2021, after bill Introduction No. 1314-A. Admin. Correct. As we reported back in 2015, New York City employers with four or more employees are subject to New York City's Fair Chance Act (FCA), colloquially known as the "ban the box" law. After the conditional offer, employers who wish to withdraw the conditional offer based on the applicant's criminal history must comply with specific requirements of the Fair Chance Process and can only withdraw the offer in limited circumstances. Code 8-102, 8-107(24). The Fair Chance Act (FCA) extends that policy to all employers . Fair Chance Notice: That Commission had prepared this form (updated 11/05/2015) is employers may use to comply with the above-noted requirement. For more details about the Notice and how it must be completed, see Part V(E)(ii). For applicants placed in a labor pool, the temporary help firm should only consider the basic skills necessary to be placed in the pool when evaluating the job duties in its Fair Chance Analysis. The law's purpose is to level the playing field for applicants who may be highly qualified but have had a criminal conviction. The employer must provide the employee a copy of the DOH notice, but may reject the applicant without performing a Fair Chance Analysis or providing them a completed Fair Chance Notice. The Commission recommends that an exemption log include the following: The Commission recommends that the results of any inquiry into an applicant's or employee's criminal history be collected and maintained on separate forms and kept confidential. English Russian Haitian Creole Korean Chinese Spanish Bengali French Though not required by law, the employer provides the applicant a copy of the criminal background check. In that case, prior to a conditional offer an employer can only ask and give consideration to whether an applicant has the required license or can obtain one within an acceptable period of time. 42 U.S.C. If you have additional questions, call 311 or contact policy@cchr.nyc.gov. Any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community. These protections reduce collateral employment consequences for New Yorkers who have been arrested or convicted of a crime, helping to level the playing field, particularly for communities that are disproportionately impacted by the criminal legal system, such as people of color and LGBTQ people.4 In addition, by providing comparable protections for pending cases and convictions, the NYCHRL empowers the legally innocent to defend themselves in court without fear that doing so will hinder their employment prospects.5, The Commission has protected workers against employment discrimination based on criminal history since 1977, sharing joint enforcement authority over Correction Law Article 23-A with the New York State Division of Human Rights.6 The protections of Article 23-A, which were expressly incorporated into the NYCHRL in 1991,7 prevent employers from arbitrarily denying an applicant a job based on a criminal conviction.8 An employer is prohibited from rejecting an otherwise qualified job applicant because of their conviction record unless there is a direct relationship between the conviction and the job or an unreasonable risk to people or property, taking into account specific considerationssuch as the recency and severity of the offense, its relationship to the nature of the job, and evidence of rehabilitation.9 The NYCHRL also incorporates protections set forth in the New York State Human Rights Law 296(16), related to an applicant's record of arrests in non-pending cases that resolved in the person's favor; youthful offender adjudications; sealed cases; and cases adjourned in contemplation of dismissal ("ACDs").10. Pursuant to the 2005 Civil Rights Restoration Act, the NYCHRL must be construed "independently from similar or identical provisions of New York state or federal statutes," such that "similarly worded provisions of federal and state civil rights laws [are] a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise."1. The five-day period begins running when an applicant receives both the inquiry and Notice. The NYCHRL's protections based on criminal history control when an employment-related action of an employer who is not exempt, as described Subparts C and D, is discretionary, meaning it is not explicitly mandated by law. Massachusetts - Information Concerning the Process for Correcting a Criminal Record. Admin. N.Y.C. For more details about this process, see Part V(E)(i). Each of the following is a separate, chargeable violation of the NYCHRL when the Fair Chance Process is applicable: Failing to disclose to the person a written copy of any inquiry an employer conducted into the person's criminal history; Failing to share with the person a written copy of the employer's Fair Chance Analysis; With respect to job applicants, failing to hold the prospective position open for at least five business days from an applicant's receipt of both the inquiry and Fair Chance Analysis, to allow the applicant to respond. The Fair Chance Act ensures that New York residents all have a fair chance at a job, even if they have had trouble with the law. Any information produced by the person, or produced on the person's behalf, in regard to their rehabilitation or good conduct. N.Y. Crim. Example: An employer is hiring for a home health aide position and is required under the Public Health Law to request that the New York Department of Health ("DOH") check prospective employees' criminal background.89 The employer is still prohibited by the NYCHRL from stating "background check required" in the job posting. February 3, 2021. Recent Amendments to the New York City Fair Chance Act (FCA) that took effect on July 29, 2021, significantly expand the scope of the FCA by imposing new restrictions on an employer's ability to . If the applicant raises their criminal record voluntarily, the employer should not use that as an opportunity to explore an applicant's criminal history further. Before disqualifying an applicant based on their intentional misrepresentation about their criminal history, failing to provide the applicant a copy of the information that the employer is relying on as evidence of the intentional misrepresentation and an opportunity to respond. Because it is often impracticable to separate criminal and non-criminal information contained in a driving abstract, employers must not review driving abstracts until after a conditional offer has been extended. The FCA prevents employers from looking at an applicant's criminal history until after a conditional offer of employment is extended. The Commission will begin with the purpose of the NYCHRL: "to overcome stigma toward" and the "unnecessary exclusion" from employment of people with criminal system involvement.61 The Commission will also consider relevant case law interpreting Article 23-A and applicable provisions of the NYCHRL.62 Employers must make a reasoned evaluation of each relevant fair chance factor;63 they cannot ignore evidence favorable to the applicant;64 and they cannot simply engage in a pro forma review of the relevant fair chance factors.65 Employers should consider applicants' successful performance of their job duties in past employment, along with evidence, in the case of convictions, that they have addressed the causes of their criminal activity.66 The Commission will presume that any negative non-criminal information known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer once the employer is aware of an applicant's criminal history. The Fair Chance Act ("FCA") was added to the NYCHRL on October 27, 2015, because the City determined that, despite the requirement that employers must fairly assess candidates under Article 23-A of the Correction Law, many employers were disregarding candidates who disclosed criminal histories early in the hiring process. Failing to respond to an appearance ticket; Loitering for the purpose of engaging in a prostitution offense; Cases that resolved in a conviction for a non-criminal offense under the laws of a state other than New York; As an exception to this general rule, law enforcement agencies hiring for civilian positions can consider all non-convictions, except criminal actions followed by an ACD or terminated in favor of the applicant, as defined by New York Criminal Procedure Law 160.50. Law 296(16). The public policy of New York State to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. If the applicant has a criminal history about which the employer has concerns but that is not subject to the legally mandatory bar, the employer must conduct the Fair Chance Analysis and provide the applicant a copy of the inquiry and Fair Chance Notice and a reasonable period of at least five days to respond.93. Law 380-b(b). We highlight the changes in the law and action items below. Based on the enclosed check, we have reservations about hiring you for the position of _________________________, and may decide to retract our job offer for reasons explained below. An employer also cannot list specific facts but then fail to describe how, based upon those facts, it concluded that the applicant's record evidenced either a direct relationship to the job or an unreasonable risk to people or property. The NYCHRL provides protections for people with a record of criminal system involvement in the areas of employment, licensure, and credit.2 This Guidance focuses on protections in employment. The 28-page Guidance clarifies and interprets key amendments to the New York City Fair Chance Act (FCA), which take effect on July 29, 2021. N.Y.C. Of New Nyc City Council amended New Majorek City's Fair Chance Act (FCA) to significantly expand the scope of protections to applicants and employees with detective bills or arrests. Alternatively, a complaint may be filed in New York State Supreme Court within three (3) years of the discriminatory act. Previous Flipbook. The specific duties and responsibilities necessarily related to the employment sought or held by the person. Legal Enforcement Guidance: Legal guidance on the Fair Chance Act (updated 11/05/2015). The. Employers may identify specific examples of rehabilitation or good conduct that would be most relevant to its analysis, but examples must be included. Investigations into the applicant's criminal history, including using public or government records or the internet, whether conducted by an employer or for an employer by a third party. Termination in favor of the individual, as defined by CPL 160.50, even if not sealed; Adjudication as a youthful offender, as defined by CPL 720.35, even if not sealed or marked confidential; Conviction of a violation, as defined in Penal Law 10.00, even if not sealed; Conviction of a non-criminal offense, as defined by a law of another state, even if not sealed; or.
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