NYC COMMISSION’S INTERPRETATION OF FAIR CHANCE ACT MAY CAUSE GREAT DIFFICULTIES TO EMPLOYERS, CRAS AND APPLICANTS

The Fair Chance Act makes it illegal for most employers in New York City to ask a job applicant about criminal history before making a job offer. Ads, applications, and interview questions cannot mention or inquire about an applicant’s criminal record. The purpose of this law is to allow the applicant to be judged based upon his or her qualifications. In the case that the employer wants to revoke the offer because of the existence of a criminal record, the employer must explain why using the Fair Chance Notice, provide a copy of any background check conducted by the employer or third-party vendor, and give the applicant three business days to respond.

The New York City Commission on Human Rights has interpreted the Fair Chance Act as requiring a two-step, divided screening process, specifically separating criminal components of a background check from all other components both in time (with the criminal portion to occur later) and space (criminal portion to be on a separate report). NAPBS continues to engage with the New York City Commission on Human Rights (Commission) regarding their interpretation of the Fair Chance Act. NAPBS disagrees with this interpretation and will continue its efforts alongside other organizations to fight this interpretation.

NAPBS does not believe a plain reading of the law requires a two-step background check process, or that the Fair Chance Act’s statutory language or interpretative guidance gives adequate notice to employers that the Commission believes this to be required. There is no language in the law stating the conditional offer must be conditioned solely upon a criminal background check. Ms. Devata and Ms. Stieber discussed NAPBS’s concerns surrounding the impractical reality of a two-step process, the significant burden it would place on employers and consumer reporting agencies, the technological difficulties with implementing such a process, and most importantly, the potential harm and confusion it would cause applicants.

NAPBS, and other organizations including the Greater New York Hospital Association, The Business Council of New York, and Partnership For New York City, have now weighed in that no one outside of the Commission interpreted the Fair Chance Act to require a two-step screening process, noting that if anyone had that interpretation, the Commission would have received numerous comments during the comment period prior to the completion of their rulemaking.

The Commission has still not addressed or considered many issues we have raised, including the potential that this requirement would cause duplicative paperwork, notifications and other steps required by the FCRA. In addition, this interpretation of the Fair Chance Act is not only onerous for applicants, employers and consumer reporting agencies, but entirely unfeasible for all parties involved.

Currently, NAPBS and other coalition members are still in active communication with the Commission, and while they have not moved to amend their interpretation, the Commission has shown receptiveness to trying to further understand our position. NAPBS is committed to seeing this interpretation changed, and we will continue to engage the Commission as well as other sections of NYC government to bring attention to this issue and the problems it brings for both applicants and employers in New York City.

If you are an employer in the New York City area, please contact your industry associations to encourage them to get involved in the issue and act to join our coalition. Alternatively, you may contact Brent Smoyer at brent.smoyer@napbs.com or 402-957-1179.