NOTE: The NYC Commission on Human Rights has further information on the law, including this Fair Chance Act Enforcement Guide.
What does the Fair Chance Act do?
It ensures that all New Yorkers have a fair chance to compete for a job. New York City already prohibits its agencies and human services contractors from asking whether a job applicant has been convicted of a crime and from doing a background check until the first job interview. The Fair Chance Act (FCA) extends that policy to all employers, public and private, and requires employers to wait until they offer an applicant a job before asking about the person’s conviction history or doing a background check. It also has other features that will help ensure that job applicants are evaluated on their merits, not barred due to their conviction history.
What happens after the conditional job offer?
If an employer has made a conditional job offer to an applicant, it may ask questions about the applicant’s conviction history and may (with the applicant’s permission) perform a criminal background check. If, after receiving the background check, the employer decides either that the conviction history is directly related to the job or that hiring the applicant would pose a risk to persons or property, the employer must provide a copy of the record and explain the basis for this decision, showing how it has evaluated the applicant using existing New York law that prohibits discrimination based upon criminal record. Under that law, employers have to consider, among other things:
• The specific duties and responsibilities of the job and the bearing, if any, of the person’s conviction history on his or her fitness or ability to perform them;
• How long ago the offense occurred, how serious it was and the person’s age at the time;
• The person’s evidence of good conduct, achievements and positive life changes; and
• The employer’s legitimate interest in protecting property, specific individuals, or the general public.
Once the employer provides this notification to the applicant, the position must be held open for three days to allow the employer and applicant to engage in an interactive discussion, considering the employer’s requirements and the applicant’s evidence of good conduct, achievements and rehabilitation, and so the applicant can contest any inaccuracies on the record.
What about ads that say “background check required” or “no felonies?”
The Fair Chance Act explicitly prohibits ads like these. Whether a person has a criminal record should not be mentioned in the hiring process until that person is selected, out of all the other candidates, for a conditional job offer.
Do employers have to hire people with criminal records?
No, the FCA does not require employers to hire people with conviction histories, nor does it prevent employers from running background checks. It simply allows job applicants with conviction histories to compete on their merits rather than having their applications denied or not considered in violation of pre-existing law. It delays questions about conviction history and running background checks until an applicant has had a chance to demonstrate his or her qualifications for the job sought. The FCA does not override local, state or federal laws that prohibit people with job-related convictions from working in secure areas or with vulnerable people.
Are any employers exempt from the Fair Chance Act?
Yes, law enforcement agencies are exempt from the law. Also, the Fair Chance Act does not apply if an employer is prohibited by local, state or federal law from hiring people with certain convictions. The Fair Chance Act only applies when an employer has discretion to hire an applicant with a criminal conviction.