NYC Issues Proposed Fair Chance Act Rule Amendments

Posted: March 18, 2016

The New York City Commission on Human Rights (NYCCHR) has issued proposed rule amendments regarding the Fair Chance Act.

At the heart of the proposed rule amendments is the creation of per se violations that would lead to employer liability regardless of there is any harm caused or adverse action taken. In particular, employers could commit a per se violation by:

  1. Declaring or circulating a job advertisement or solicitation that indirectly or directly expresses that any limitations regarding criminal history (such as “background check required”, “felons need not apply” or “must have clean record”);
  2. Distributing an employment application that requires an applicant to provide permission for a background check or to provide information regarding criminal history;
  3. Making any statement or inquiry regarding pending arrest or criminal conviction information prior to extending a conditional offer;
  4. Using any standard form or boilerplate employment application that includes a criminal history question regardless of if the form specifies NYC applicants should not respond; and
  5. Failing to comply with the Fair Chance process as specified in the rules (including a failure to hold the position open for at least three business days).

Essentially, if these proposed rule amendments were to be enacted, employers that hire across jurisdictions would need an entirely separate employment application for NYC applicants or would need to eliminate any mention of a background check or criminal history inquiry from their standard application.

Additionally, employers would be prohibited from mentioning that any background check is or may be required before extending a conditional offer. This restriction is contradictory to other local ordinances in the state of New York such as in Rochester or Buffalo where employers are required to inform candidates if a background check will be conducted if they do not conduct an interview. Further, employers are prohibited from searching for terms such as “arrest”, “mugshot” or “conviction”.

Finally, the proposed rule amendments would address “early resolution” which would allow companies that commit per se violations to receive a penalty instead of entering the litigation process. However, the proposed rule amendments carve out broad-reaching exceptions to the early resolution scheme including if an early resolution would not be in the public interest if the employer serves or works with vulnerable communities or if the NYCCHR believes discrimination is “rampant” in the employer’s industry. Employers would also be subject to penalties per violation type. Early resolution would not be available for companies that have more than 50 employees at the time of the alleged violation.

Any comments on the proposed rules are due by March 21 – the same day a public hearing will take place. The public hearing will take place at 1:00 pm on March 21, 2016, and will be located at 125 Worth Street, 2nd Floor Auditorium.

Employers are encouraged to attend the hearing and/or submit written comments. As announced in its press release regarding cases resolved in 2015, the NYCCHR continues to ramp up its investigatory practices. Indeed over $1.37 million in fines and compensatory damages were collected via discrimination cases over the course of 2015. Regarding criminal history discrimination, the NYCCHR opened 77 cases in 2015 – a 544% increase from 2014 when the NYCCHR opened 12 criminal history discrimination cases.

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