For jobseekers with a criminal history, workplace discrimination is a real problem. The ability to gain lawful employment, receive income, and contribute to society is necessary to end the cycle of recidivism. Fortunately, the New York City Council recently expanded protections for local workers with criminal records to reduce unfair discrimination.
The New York City Fair Chance Act
The New York City Fair Chance Act (FCA) took effect in October 2015. It states that employers cannot:
- Inquire about a job applicant’s criminal conviction record before making an offer of employment.
- Search public records to obtain information on criminal history before offering a position.
Amendments to the New York City Fair Chance Act
On January 10, 2021, the following new amendments became law:
- Employers cannot search public records or inquire about an applicant’s pending arrests and criminal accusations, as well as criminal convictions, before making a conditional offer of employment.
- Employers must consider the “relevant fair factor test” before disqualifying applicants or revoking a conditional offer of employment.
An employer can revoke a conditional offer of employment based on a criminal information review– only after all other aptitude screenings and background checks have been completed.
What is the Relevant Fair Factor Test?
According to the City Council Amendments, employers must consider seven factors in new hire analysis:
- The City’s policy to overcome stigma and unnecessary exclusion of persons with a criminal history.
- The specific duties and responsibilities related to the employment.
- The bearing that the criminal offense(s) would have on the applicant’s fitness to perform the job duties.
- Whether the applicant was 25 years of age or younger at the time of the alleged criminal offenses.
- The seriousness of such offenses.
- The employer’s interest in protecting the property, specific workers, and safety of the general public.
- Additional information produced by the applicant regarding rehabilitation or good conduct.
Can Your Employer Reject Your Application for a Criminal Record?
In a nutshell, employers can still revoke conditional offers of employment, but they must be able to:
- Demonstrate how the hire would create an unreasonable risk to property, specific employees, or the general public.
- Show that the wrongdoing prohibits the applicant from performing the duties and responsibilities of the position.
- Prove that the applicant intentionally misrepresented a lawful criminal background inquiry.
What if You Receive an Adverse Action?
Employers must provide a written copy of this evaluation to the employee, including supporting documents used in the analysis and decision-making. If you believe that a prospective employer has discriminated against you based on a past criminal conviction or accusation, contact The Noble Law to schedule a free consultation with a highly qualified and experienced New York discrimination lawyer. We listen. We hear you. We understand.