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Human Resources

New York City Fair Chance Act

Nannette Madera, PHR
by Nannette Madera, PHR on October 28, 2021

Does your company hire employees in New York City (NYC) and conduct pre-employment background checks? If yes, there are guidelines your company will need to follow to comply with a law that requires NYC employers to follow certain steps when conducting pre-employment background checks.

The NYC Fair Chance Act prohibits employers from considering an applicant's criminal history until after all other job qualifications have been assessed and the employee has been made a conditional offer of employment. The NYC Fair Chance Act also prohibits employers from making statements related to criminal history during the recruitment process. This means all non-criminal pre-employment checks must be conducted and passed by the applicant before a conditional offer of employment is made and moving on to the next step of the recruiting process. After a conditional offer of employment is made, the applicant's criminal history may be accessed and reviewed to be considered in compliance with an individualized assessment, notice and consideration requirements of the Fair Chance Act (FCA).

The FCA's guidance instructs employers to omit any mention of a criminal background check when seeking an applicant's authorization for a background check before a conditional offer of employment. Reference to a criminal background check must be removed from forms, and the disclosure form is to be provided separately from the authorization form. In order to be in compliance, pre-employment background checks should be conducted in two separate stages:

  1. The first stage is the non-criminal pre-employment checks, which include reference checks, a previous employment history check, and education or degree verification.
  2. The second stage is the criminal pre-employment checks – these are conducted after a conditional offer of employment and include the criminal history and motor vehicle reports (MVRs). Since MVRs may consist of criminal and non-criminal information, the guidance instructs employers not to review the applicant's driving report until after the conditional offer has been made.

Employers rescinding a job offer based on the results of the criminal history must comply with the Fair Chance Process and can only withdraw the offer in limited circumstances. The New York City Commission on Human Rights has also released guidance on the hiring process as well as additional protections for employees after hire – click here for details.

When done correctly, a pre-employment background check not only helps to protect the employer but offers fair opportunities to job seekers. Implementing a background check program for your company doesn't have to be time-consuming or costly. Learn more here about pre-employment background checks and how to avoid hiring pitfalls and hire great employees.

At FrankCrum, we help our clients establish a background check policy that ensures the appropriate treatment of applicants and employees who have either committed criminal activity before employment or become involved in illegal activity during employment. As a bonus, FrankCrum provides criminal record background services to its clients. Click here to learn how FrankCrum can help you!

Nannette Madera, PHR
Nannette Madera, PHR

Nannette Madera, is a bilingual Certified Professional in Human Resources who has over 10 years of experience in Human Resources, Management, Training, and Organizational Development.