New York City Amends Fair Chance Factors Under Ban-the-Box Law

On December 10, 2020, the New York City Council amended New York City’s Fair Chance Act (FCA), also known as the “ban the box” law. The recently enacted amendments will take effect on July 29, 2021.

Relevant Fair Chance Factors

The current New York City FCA regulations apply to an applicant’s arrest and conviction history and contain eight factors that are essentially the same as those set forth in the New York State Correction Law, Article 23-A, for analyzing whether an employer may “take adverse action against any applicant” based on the applicant’s arrest and conviction history. The new amendments add “relevant fair chance factors” that extend the FCA’s coverage to additional scenarios beyond an applicant’s arrest and conviction history. The newly enacted relevant fair chance factors apply to (i) applicants with pending arrests, (ii) employees pending arrests, and (iii) employees with criminal convictions. The new FCA relevant fair chance factors are:

• “the policy of the city … to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment”;
• “the specific duties and responsibilities necessarily related to the employment held by the person”;
• “the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities”;
• “whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations”;
• “the seriousness of such offense or offenses”;
• “the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public”; and
• “any additional information produced by the applicant or employee, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.”

The new relevant fair chance factors in the FCA are the same ones previously implemented in the FCA regulations, with one exception. Instead of eight factors, there are seven FCA relevant fair chance factors—deleting from consideration “[t]he time that has elapsed since the occurrence of the … applicant’s criminal conviction” factor. While this factor was deleted in the FCA’s relevant fair chance factors, employers may still want to consider that factor as part of the New York State Correction Law Article 23-A factors—which otherwise are almost identical to the FCA relevant fair chance factors and apply in New York City.

The amended FCA requires that employers affirmatively request from applicants information relating to the relevant fair chance factors. While this obligation is new to the FCA ordinance itself, the regulations implementing the FCA already contained this requirement.

Adjournments in Contemplation of Dismissal

Under the FCA, employers have been permitted to inquire about and consider only pending actions. Under the amendments, an action that has been adjourned in contemplation of dismissal is not considered a “pending action” (but seemingly a nonpending action) “unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution.” As a result, employers may not ask about adjournments in contemplation of dismissal unless they have been restored for further prosecution.

Violations and Noncriminal Offenses

Pursuant to the amendments, unless specifically required by law, employers cannot make any inquiry or consider the following:

• violations (other than traffic infractions) for which the possible sentence is a term of imprisonment of 15 days or fewer; and
• noncriminal offenses as defined by the law of another state (e.g., noncriminal disorderly conduct). It is unclear exactly what constitutes a noncriminal offense.

The pre-amendment FCA prohibits consideration of nonpending arrests; criminal accusations; adjournments in contemplation of dismissal (unless revoked and restored to the docket, as noted above); youthful offender adjudications; and convictions sealed pursuant to certain sections of the criminal procedure law. The new FCA amendments close the gap, also prohibiting inquiries into these types of records. Once the amendments become effective, employers may not inquire about or consider the types of records listed in this subheading.

FCA Applied to Applicants and Employees

The amendments clear up any confusion as to whether the FCA applies to employees or only to applicants. It applies to both. The amendments fill in a gap left open by the original FCA. The original FCA applied to arrests and convictions for applicants, but perhaps not for employees. The amendments will apply the FCA to (i) pending arrests involving applicants, (ii) pending arrests involving employees, and (iii) convictions of employees.

Newly Codified Definition of “Conditional Offer of Employment”

The amendments add a definition of “conditional offer of employment” (consistent with the one already in the accompanying regulations) as “an offer of employment, promotion or transfer which may only be revoked based on one of the following”:

• “[t]he results of a criminal background check,” after the FCA process has been followed;
• “[t]he results of a medical exam as permitted by the [A]mericans with [D]isabilities [A]ct”; or
• “[o]ther information the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.”

Most typical employer screening items or activities (e.g., drug screenings, employment and reference checks by consumer reporting agencies, etc.) will not fall into the third “other information the employer could not have reasonably known before making the conditional offer” category. This significant definitional addition may mean that New York City employers that generally use other, post-conditional-offer activities (e.g., drug screens) as part of their assessments must implement two-tiered screenings in which employers first receive noncriminal reports (e.g., drug screens), just before extending conditional offers. Then, after reviewing other information (e.g., drug screens, etc.) and before making conditional offers, employers would receive and review criminal history reports (and the few other items noted above—e.g., medical exam results) following the conditional offers.

Employers may want to ensure that their background check processes account for these changes in New York City law once they are effective.

Adverse Employment Action Allowed for Intentional Misrepresentation

The FCA had left open the question of whether employers were permitted to take adverse action against applicants and employees who had made intentional misrepresentations regarding their arrest or conviction histories. The amendments clarify that an employer may “tak[e] adverse action against an applicant or employee who is found to have made intentional misrepresentations regarding their arrest or conviction history, provided that such adverse action is not based on a failure to divulge information that a person may not be required to divulge … and provided further that the employer provides the applicant or employee with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and gives the person a reasonable time to respond.”

Further information on federal, state, and major locality background check requirements is available in the firm’s OD Comply: Background Checks subscription materials, which are updated and provided to OD Comply subscribers as the law changes.