New York City Fair Chance Act (NYFCA) adds protections for individuals with criminal records.

In 2015, NYC passed the NYFCA that prohibited employers from inquiring about a potential employee’s criminal record before a job offer. An employer could not rescind an offer based on a prior conviction without undertaking a “Fair Chance Process”. This processing including balancing factors in Article 23-A of the New York Corrections Law. If a job offer was taken away, the employer needed to share the analysis with the individual. The applicant was also to be given at least 3 days to respond.

The first amendment to the Act extends these protections to CURRENT employees, not just applicants. The analysis for employees and independent contractors slightly differs than the analysis required for applicants. It uses seven factors (the “NYC Fair Chance Factors”) set forth in the NYC Commission on Human Rights Legal Enforcement Guidance. For applicants, employers use eight factors set forth in Article 23-A of the New York Corrections Law.

The next change allows applicants more time to respond. Applicants are given a minimum of five days instead of three. Additionally, there are changes to the vetting process. Under the original NYFCA, the only restrictions for an employer’s review and consideration of an applicant’s background checks were the requirements of the Fair Chance Process. Now, an employer must separate its review of such a report into two phases. (1) Before making an offer, the employer may only review non-criminal background information (employers may not review driving records because these records could contain references to criminal history). (2) After reviewing the information and making a conditional offer, the employer can review criminal history and driving records and, if needed, engage in the Fair Chance Process.

The amended NYFCA and the New York City Commission on Human Rights’ NYFCA guidance states private and most public employers are prohibited from seeking any information or taking adverse employment action based on a person’s non-conviction history. This includes arrests that did not result in prosecution, cases in which all charges were dismissed, youthful offenses, and sealed convictions.

The criminal defense attorneys and employment attorneys are here to assist employees and employers with questions about the job screening process. Our criminal defense lawyers are well-versed in the impact of various convictions. Our employment lawyers are able to tie this information together to effectively analyze this process. Our experienced attorneys practice throughout the New York and New Jersey metro-area, including but not limited to the following counties: New York City, Queens, Kings (Brooklyn), Long Island, Bergen, Hudson and more. The lawyers at Heiferman & Associates are available by appointment in the office, as well as Zoom, MS Teams, Google and more. Please contact us today at (718) 888-9545 to schedule a consultation.