In 2015, the New York Fair Chance Act (FCA) took effect. It required employers to provide applicants with a criminal conviction history a chance to respond to the decisions relating to refusing employment with their companies. The FCA’s primary purpose was to prevent requests or use of the data to consider a conditional job offer.
New protections for employees
Amendments to the FCA take effect on July 29, 2021, and will apply to current employees with unsealed violations and non-criminal offenses who have cases pending. The changes will provide new protections for those with criminal histories, prohibiting inquiries into pending arrests or criminal accusations before a conditional employment offer.
Employers are required to conduct a job-related analysis prior to disqualifying an applicant or terminating a current employee with a pending criminal offense. They can take adverse action if the following apply:
- The direct relationship between the alleged offense leading to an arrest or criminal accusations with the pending or existing employment
- The continuing employment relationship potentially resulting in an unreasonable risk to property or the safety of fellow workers or the general public
Additional considerations include:
- Application of similar (not identical) factors in their evaluation to withdraw a conditional offer to a prospective staff member or terminate an employee accused of a crime
- The span of time since the offense with pending employment matters requiring consideration of the age when the applicant was charged (25 or younger)
- In addition to disqualifying applicants for non-pending arrests, criminal accusations, and other related factors, employers can no longer inquire about similar incidents
- A fair chance process in the pre-employment phase based on an accusation, conviction, or pending arrest
Employers can still take adverse action against prospective or current employees who purposefully misrepresented an arrest or conviction history, provided that the following apply:
- The deception does not involve required information provided by the applicant
- Employer-provided documents that determined intentional misrepresentation occurred with a reasonable time limit for applicant/employee response
The complexities that come with the continuing evolution of new employment laws often require the help of an attorney to prevent legal issues in the future.