As mentioned in our recent post, the New York City Commission on Human Rights is proposing to amend its rules to establish various definitions and clarify certain requirements under the Fair Chance Act. Key aspects of the proposed rules include the following:
- Applicability of the Fair Chance Act Post-Hire: “Applicants” are defined to include both potential employees and “current employees who are seeking or being considered for positive changes to the terms and conditions of their employment, including, without limitation, promotions.”
- Definition of Conditional Offer: For purposes of determining when an applicant’s or employee’s criminal history can be considered, a “conditional offer of employment” is defined as “an offer of employment or an offer to positively change the terms and conditions of employment” that can be revoked only on the basis of
- The results of a criminal background check (and only after following the Fair Chance process);
- The results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act; or
- “Other information the employer could not have reasonably known before the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material.”
- Per Se Violations: The following will be deemed violations of the Fair Chance Act, regardless of whether any adverse action was taken or actual injury occurred as a result:
- Declaring, printing or circulating any solicitation, advertisement or publication that expresses any limitation or specification in employment regarding criminal history (including advertisements and employment applications that contain phrases such as “no felonies,” “background check required,” or “must have clean record”);
- Using applications that authorize a criminal background check or require the applicant to provide information regarding criminal history;
- Making any statement or inquiry regarding an applicant’s pending arrest or criminal conviction before extending a conditional offer of employment;
- Using a multi-state job application that requests or refers to criminal history, even if such application includes an instruction or disclaimer indicating that certain applicants should not answer; and
- Failure, when required (1) to provide an applicant with a written copy of any criminal history inquiry obtained or conducted (such as the results of a criminal background check); (2) to provide the applicant with a written copy of the Article 23-A analysis; or (3) to hold the position open for at least three business days from the applicant’s receipt of the inquiry and analysis.
- Applicability of Fair Chance Process to Pending Arrests: The employer should engage in the Fair Chance process (by conducting the Article 23-A analysis, providing a copy of such analysis along with the results of any criminal inquiry, and allowing the applicant reasonable time to respond) if the employer wishes to withdraw a conditional offer or take adverse employment action based on either conviction history or a pending criminal case. This means that, as with convictions, a conditional offer can be revoked on the basis of a pending criminal case only if the employer determines that there is a “direct relationship” between the pending criminal case and the prospective job or that employing (or continuing to employ) the individual would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
- Early Resolution: The proposed rules create an expedited settlement option for cases that involve Commission-initiated complaints of per se violations (see above). This option will be available only for respondents that have 50 or less employees at the time of the alleged violation, have no other pending or current allegations concerning violations of the NYC Human Rights Law, and have had no more than one previous violation of the NYC Human Rights Law in the past three years. When the Early Resolution option is available, an employer can opt either to file an answer or to admit liability. If liability is admitted, the employer will be required to participate in a mandatory training provided by the Commission, post a notice of rights under the NYC Human Rights Law, and pay a monetary fine that is determined based on inter alia the size of the employer. The rules establish a fine schedule that ranges from $500 – $3500 for a first violation and $1000 – $10,000 for a second violation. The Commission also retains the right not to offer the Early Resolution option, even when an employer otherwise meets the criteria, if doing so would not be in the public interest.
Proskauer will continue to monitor and report any developments.