New York City’s Fair Chance Act Offers Hope for Individuals with Criminal Record

New legislation limits an employer’s ability to conduct background checks during the hiring process

In 2015, more than 531,000 individuals were arrested and charged with crimes ranging from minor misdemeanor infractions to more serious felony offenses. While some may avoid a lasting record, others are likely to face an uphill battle to move forward, even after their court cases are resolved. Many of these individuals will be left with a criminal history that impacts their ability to obtain gainful employment.

A recently signed piece of legislation provides some hope for these individuals, however. New York City’s Fair Chance Act limits an employer’s ability to conduct criminal background checks during the hiring process. In the past, an employer had the option to conduct criminal checks at any point in the application process. Under the Fair Chance Act, employers may only conduct a background examination after the company is ready to make an offer of employment to an applicant.

Why is the Fair Chance Act so important?

The Fair Chance Act has the potential to impact thousands of New Yorkers during their search for employment. Individuals who once encountered issues obtaining employment due to their criminal record now have the opportunity to prove their character and qualifications before being removed from the pool of applicants.

What does the Fair Chance Act do?

The Fair Chance Act imposes restrictions upon employers during and after the hiring process. The act prohibits employer from:

• Conducting preemptive background checks: The Fair Chance Act prohibits employers from conducting criminal record checks prior to extending a conditional offer of employment to the applicant in question. Conducting a check prior to an offer violates the term of the act and may result in adverse action against the employer.

• Referencing criminal history requirements: Job postings and employment-related materials cannot make mention of criminal history requirements. For example, a job posting cannot include language such as “criminal record check required” or “applicants must pass a criminal background check” are not allowed under the Fair Chance Act.

• Withdrawing an offer without notice: While an employer may withdraw a conditional offer of employment after viewing the results of a background check, the employer must follow specific steps before doing so. First, the employer must offer the applicant a copy of the criminal report. Second, the employer must offer its thoughts on the result of the investigation with the applicant. Finally, the employer must give the applicant three business days to respond to the results before offering the position to another applicant.

• Punishing individuals for a non-conviction: The Fair Chance Act prevents employers from terminating or refusing employment to individuals who have been charged with, but not convicted of a crime. This means that only convictions may be considered during the application or termination process.

Failure to adhere to these guidelines may result in adverse action against the offending employer, including financial sanctions for any and all violations.

Let our New York employment lawyers help you put the Fair Chance Act to work for you

At Hepworth, Gershbaum & Roth, PLLC, our New York employment law attorneys firmly believe in second chances and fully support the Fair Chance Act. If you feel that an employer has violated the terms of the Fair Chance Act in any way, it is important to discuss your concerns with one of our experienced lawyers. To schedule a free consultation with one of our New York employment lawyers, contact us online or call 212-545-1199.