New Amendments to the New York Fair Chance Act Require Two-Part Background Checks

The amendments to New York’s Fair Chance Act set to take effect on July 29^th, 2021, will significantly expand the obligations of employers that wish to perform applicant background checks. These amendments will require the majority of background checks to take two stages a non-criminal background check and a criminal one. Additionally, the amendments add certain factors that must be used to evaluate pending charges.

Two-Stage Background Checks

The Amended Fair Chance Act will require that employers only run background checks after a conditional offer is made that can only be revoked based on certain factors. These Factors include:

• Disqualifying material found in a criminal background check
• Disqualifying material discovered from a medical examination
• Information was discovered that could not have reasonably been known prior to the check.

What this means is that NYC employers must perform a non-criminal background check on factors such as work experience, references, and education before making a conditional offer of employment. This is stage one. One of the most important features of these changes is that once you extend a conditional offer of employment, it is illegal to rescind it for any of these reasons that you already could have considered. Only the materials that are revealed during stage two can be used to rescind a conditional offer.

Once deciding to extend a conditional offer, it is time to perform a criminal history check. During this stage, you also can check records related to driving history as these are often tied to and reveal criminal history. This is the end of stage two.

For positions that require a background check under a government mandate or self-regulated organization, such as certain financial positions, limited exceptions to these separate stages are allowed. It is crucial under this law to request separate non-criminal and criminal background checks from your provider, or if this is impossible, develop a system to separate these reports before they are supplied to the decision-maker.

Furthermore, these laws also forbid making neutral statements to candidates about the concept of criminal background checks, including statements that your company

complies with laws protecting applicants with a criminal history. This may require changes to positions disclosure and consent forms or even developing pre and post-offer forms.

Complete protection and Fair Chance Factors for Pending Charges

These amendments prohibit employers from considering or asking about criminal history that does not result in a conviction. This includes implying or taking adverse action as a result of non-convictions.

The amendments also create a list of Fair Chance Factors virtually identical to Article 23-A factors for past convictions. These factors must be considered before taking adverse action based on pending charges, just as Article 23-A factors must be used when considering past convictions.

What This Means for Employers

Prior to July 29^th, 2021, employers must ensure that their pre-employment screening procedures are updated in order to comply with new Fair Chance Act rules. This includes adapting background check procedures as well as all forms for employment and notices.