NYC Commission On Human Rights Issues Updated Enforcement Guidance On Consideration Of Criminal History In Hiring And Employment – Employment and HR

The New York City Commission on Human Rights (the
“Commission”) has issued updated legal enforcement guidance on the NYC
Fair Chance Act (“FCA”) and employers’ consideration
of criminal history in hiring and during employment.

The updated guidance, which does not have the force of law but
which provides significant insight into the Commission’s
interpretation of these topics, is being issued in connection with
the July 29, 2021 effective date of Local Law 4, which adds
significant new protections to the NYC Human Rights Law
(“NYCHRL”) regarding applicant and employee criminal
history, including a notable new requirement that employers take
certain steps before denying or terminating employment based on
currently pending arrests or criminal
accusations.

Local Law 4’s Amendments to the NYCHRL

Codification of Article 23-A Factors in Considering Prior
Criminal Convictions

Local Law 4 amends the NYCHRL to codify the existing requirement
under New York State Correction Law Article 23-A that an employer
considering rescinding an offer of employment or taking adverse
action against an existing employee based on a prior criminal
conviction first evaluate specific factors enumerated under Article
23-A. These factors include the duties/responsibilities of the role
in question, the nature of the offense leading to the conviction,
and the time that has elapsed since the underlying offense.
Employers must analyze these factors to determine whether: (i)
there is a direct relationship between the criminal conviction and
the employment held by (or to be held by) the person; or (ii) the
granting or continuation of the employment would involve an
unreasonable risk to property or to the safety or welfare of
specific individuals or the general public.

Consideration of Currently Pending Arrests or Criminal
Accusations

Perhaps most significantly, Local Law 4 now requires employers
to also evaluate specific factors before taking adverse action
against applicants or employees based on a currently
pending arrest or criminal accusation. Up until this
amendment, the law did not require employers to take any factors
into consideration before acting based on a currently pending
arrest or criminal accusation.

These factors, which are very similar (but not identical) to the
Article 23-A factors noted above, include:

1. the policy of NYC to overcome stigma toward and unnecessary
   exclusion of persons with criminal justice involvement in the areas
   of licensure and employment;




2. the specific duties and responsibilities necessarily related to
   the employment held by (or to be held by) the person;




3. 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;




4. 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, which fact shall serve as a
   mitigating factor;




5. the seriousness of such offense or offenses;




6. 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




7. 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.

Similar to the requirement for prior criminal convictions,
employers are now required to evaluate the above factors to decide
whether adverse action may be taken based on a pending arrest or
criminal accusation either because there is a direct relationship
between the alleged wrongdoing and the job or employment would
involve an unreasonable risk to property or people’s
safety.

In addition, before taking any adverse employment action based
on a pending arrest or criminal accusation, an employer is now
required to:

• request information from the applicant or employee regarding
  the enumerated factors;




• consider the impact of each of the factors on the “direct
  relationship” and “unreasonable risk” analyses;




• provide the applicant/employee with a written copy of such
  analysis, as well as any supporting documents and the
  employer’s reasons for taking the adverse action; and




• allow the applicant/employee a reasonable time to respond
  before taking adverse action.

This is the same process that is presently required under the
FCA before an employer may take adverse action based on a prior
criminal conviction (referred to by the Commission as the
“Fair Chance Process”).

Codified Definition of “Conditional Offer of
Employment”

Under the FCA employers are prohibited from making inquiries
into or considering an applicant’s criminal history until a
conditional offer of employment has been made. In its original
form, the statute did not include a definition of what constitutes
such a conditional offer, though the Commission set forth a
definition in its legal enforcement guidance on the law.

Local Law 4 now codifies the definition of “conditional
offer of employment” as “an offer of employment,
promotion or transfer which may only be revoked based on one of the
following:

1. The results of a criminal background check, conducted in
   accordance with the provisions of this chapter;




2. The results of a medical exam as permitted by the Americans
   with Disabilities Act of 1990, as amended, 42 U.S.C. §12112;
   or




3. Other 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.”

Expanded Definition of “Non-convictions”

Prior to this amendment, the NYCHRL provided that employers may
never consider certain aspects of an applicant’s or
employee’s criminal history in making employment decisions,
including criminal actions adjourned in contemplation of dismissal
and criminal actions not currently pending that were: terminated in
favor of the individual or adjudicated as a youthful offender,
whether or not sealed; or involving a sealed conviction for a
non-criminal violation or any other conviction that was sealed
under applicable law. Such excluded matters are referred to as
“non-convictions.”

Local Law 4 expands the definition of
“non-convictions” to add the following types of matters,
whether or not sealed:

• convictions of a violation as defined in Penal Law Section
  10.00; and




• convictions of a non-criminal offense.

Increased Time to Respond to a Notice of Adverse
Action

Local Law 4 increases the amount of time that employers must
give applicants and employees to respond to the information
contained in the employer’s analysis of the Fair Chance factors
and to submit any mitigating information from a minimum of three
business days to “a reasonable period of at least five
business days.”

Revised Legal Enforcement Guidance

Below are some key highlights from the revised legal enforcement
guidance, which addresses each of these amendments to the NYCHRL
and provides other clarification and additional information on
certain issues relating to consideration of criminal history in
employment.

Definitions Under the FCA

Along with incorporating updated definitions of terms such as
“criminal history” and “conditional offer of
employment,” the revised guidance:

• states that the definition of “criminal background
  check” includes not only asking an applicant/employee directly
  about criminal history or obtaining a report from a consumer
  reporting agency, but also searching for publicly available or
  government records via the internet or other private
  databases;




• defines a “pending case” as “[a] criminal action
  that has not been concluded at the time of the employer’s Fair
  Chance Analysis” but which does not include an action
  adjourned in contemplation of dismissal “unless, prior to the
  time of the employer’s assessment, the order to adjourn in
  contemplation of dismissal if revoked and the case is restored to
  the calendar for further prosecution;” and




• further expands upon the definition of
  “non-conviction” to include a “non-exhaustive list
  of the types of criminal histories that qualify as
  non-convictions,” including cases in which the prosecutor
  declines to prosecute following arrest; resolved cases for
  violations such as trespass, disorderly conduct/behavior, failing
  to respond to an appearance ticket, loitering (including for the
  purposes of engaging in a prostitution offense), and second degree
  harassment; and convictions for non-criminal offenses under any
  other state’s laws.

When a Conditional Offer Has Occurred and the Background
Check Process

As discussed above, Local Law 4 incorporates a specific
definition of “conditional offer of employment” into the
NYCHRL. The revised guidance states that “[u]nless an
exemption applies, criminal history may not be sought or
considered by employers before a conditional offer of
employment” and employers are prohibited from “asking
about or considering information about an applicant’s
conviction history or pending cases until after the employer has
assessed all other job qualifications and made a
conditional offer of employment to the applicant.” (Emphasis
added).

The revised guidance goes on to state:

“Employers who request
background checks on applicants should first receive the
non-criminal information, evaluate it, and then receive and
evaluate the criminal information. . . . Though most background
check companies can produce separate reports for criminal and
non-criminal information, employers whose background check vendor
can only produce one report with both criminal and non-criminal
information, or who otherwise face a substantial impediment to
conducting two separate background checks, must establish a system
to internally segregate criminal history information to ensure that
it is available to decisionmakers only after a conditional offer
has been made.”

In addition:

“Employers who take this route bear the burden of proving
that the criminal information was inaccessible to decisionmakers
until after a conditional offer. Employers should omit mention of a
criminal background check when seeking an applicant’s
authorization for an employment related background check prior to a
conditional offer. Employers are encouraged to use terms such as
‘consumer report’ or ‘investigative consumer
report’ rather than ‘background check’ in an
authorization notice used prior to a conditional offer.”

It is worth noting, however, that the revised guidance states
that “[b]ecause it is often impracticable to separate criminal
and non-criminal information contained in a driving abstract,
employers must not review driving abstracts until after a
conditional offer has been extended.”

As an additional note, employers are reminded that the
requirements of the federal Fair Credit Reporting Act (FCRA)
continue to apply to authorizations being obtained from candidates
or employees in connection with background checks and investigative
reports being conducted by consumer reporting agencies.

Intentional Misrepresentations by Applicants or
Employees

The revised guidance makes clear that the NYCHRL “does not
prohibit an employer from disqualifying an applicant based on the
applicant’s intentional misrepresentation about their
conviction history or pending cases” and that adverse action
taken on the basis of such misrepresentation does not require the
employer to first undertake an FCA analysis. That being said,
before taking such adverse action, the employer must provide the
applicant or employee with a copy of any information that led the
employer to believe the individual engaged in such intentional
misrepresentation, and the individual must be afforded at least
five business days to respond before any adverse action may be
taken.

Evaluating Convictions or Current Arrests/Accusations for
Current Employees

The revised guidance notes that, as set forth in Local Law 4, an
employer is permitted to place an employee on temporary leave while
it undertakes the required FCA process in connection with either a
criminal conviction or pending arrest or criminal accusation. To
that end, the guidance states that while the determination of
whether the Fair Chance Process was completed in a reasonable
amount of time is a “fact-specific inquiry,” there will
be a presumption that delays in excess of five business days from
the time the individual is placed on leave to the time of providing
notice of the FCA analysis are unreasonable. The guidance also
states that “[i]f the employee has accrued leave time, they
should be permitted to use that time consistent with the
employer’s regular leave policies.”

Exceptions to the FCA

The guidance notes that while certain federal, state and local
laws may create mandatory bars to employment based on criminal
history and would thus create exceptions to the requirements of the
FCA, such a barrier must be truly mandatory in order to qualify for
an exception, and “[t]he NYCHRL’s protections based on
criminal history control when an employment-related action . . . is
discretionary, meaning it is not explicitly mandated by
law.”

The guidance also states that where a federal, state or local
law requires an employer to perform a criminal background check
(but does not necessarily wholly bar an individual with a criminal
history from employment), an employer “may . . . advise
applicants once they apply for a position that a background check
is required and will be conducted prior to a conditional offer of
employment” and may conduct such check prior to a conditional
offer being made. However, such employers must also “notify
the applicant of the specific legal basis for the required criminal
background check” and still follow the Fair Chance Process
before taking any adverse action based on criminal history
information.

For employers in the financial services industry who are
required by a self-regulatory agency to conduct criminal background
checks of regulated persons, the revised guidance now states that
such employers “are exempt from the Fair Chance Process to
the extent that it conflicts with industry-specific rules and
regulations promulgated by a self-regulatory organization
(‘SRO’).” (Emphasis added). Previously, the guidance
stated that such employers are exempt from the FCA “when
complying” with industry-specific rules and regulations.

* * *

Local Law 4 and the revised legal enforcement guidance bring
significant changes for NYC employers with regard to consideration
of criminal history. Employers are advised to review their current
background check forms and processes, and to consult with their
Proskauer attorneys regarding next steps.

NYC Commission on Human Rights Issues Updated Enforcement Guidance
on Consideration of Criminal History in Hiring and
Employment

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