New York City Commission on Human Rights Publishes Enforcement Guidance on the Fair Chance Act

Lucie Rivière 

In our June 15, 2015 blog, “New York City Is One Step Closer to Giving Ex-offenders a ‘Fair Chance’ at Employment,” we wrote that The New York City Council had enacted The Fair Chance Act (“FCA”), which limits employment discrimination based on an arrest record or criminal conviction. The FCA took effect on October 27, 2015. On November 5, 2015, the New York City Commission on Human Rights (“the Commission”)—the executive agency responsible for enforcing the FCA— issued its “Legal Enforcement Guidance on the Fair Chance Act” (“the Guidelines”). Today’s blog examines the recently published guidelines, which aim to clarify the FCA’s requirements and prohibitions.

The Guidelines reaffirm the FCA’s legislative intent to protect individuals with criminal convictions from employment discrimination; it reminds employers that, although the FCA does not prevent employers from inquiring into applicant’s criminal record, if they do so, employers must carefully follow the Guidelines. The Guidelines then clarify a number of terms referenced in the FCA or in the Guidelines themself. Importantly, the Guidelines provide the list of four chargeable per se violations, which are separate, chargeable violations of the New York City Human Right Law (“NYCHRL”):

  • declaring, printing, or circulating any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history;
  • making any statement or inquiry about criminal history before a conditional offer of employment;
  • withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process; and
  • taking an adverse employment action because of an applicant’s non-conviction.

Per se violations may result in civil penalties even without any actual damages.

The Guidelines further explain the application of Article 23-A of New York Correction Law (“Article 23-A”). Under Article 23-A, an employer cannot deny an applicant employment based on a criminal record unless it can either draw a direct relationship between the applicant’s criminal record and the prospective job or show that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”  If an employer denies employment, it must follow the Fair Chance Process, which requires that the employers:

  • 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 Article 23-A analysis; and
  • allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.

The FCA provides the same remedies as under the NYCHRL including front and back pay, compensatory damage, punitive damages, attorneys’ fees, cost and civil penalties. Although the Commission did not specify the amount of civil penalties that may be imposed, the amount is determined according to the severity of the particular violation, the existence of additional previous or contemporaneous violations, the employer’s size, and whether or not the employer knew or should have known about the Fair Chance Act.

The Guidelines also provide a list of exempted positions to the FCA’s requirement such as self-regulatory organization positions, positions with the police, position as a peace officer or with law enforcement agencies, and city positions designated by the Department of Citywide Administrative Services as exempt.

If you believe an employer has unlawfully taken adverse action against you on the basis of a background check, please contact The Harman Firm, LLP.