How to Handle The New York City Fair Chance Act

How to Handle The New York City Fair Chance Act

Before you check, know the law.

States are rapidly changing background check laws, with new and tighter restrictions being passed all the time. But New York City’s Fair Chance Act is one of the strictest new laws on background checks. So how should employers deal with the law?

What Is The Fair Chance Act?

The Fair Chance Act is a revision to New York City’s Human Right Law that essentially forbids inquiring into an applicant’s criminal history until after a conditional job offer is extended. It’s one of the first attempts to implement a “ban the box” policy, where applications cannot ask if anyone filling them out has a criminal history.

IIt doesn’t mean you can’t run any sort of background check, but there are a few requirements. You’ll need to provide a copy of any background check to the applicant to let them address errors. You’ll need to evaluate the applicant using a “Fair Chance Form,” which requires you to fill out a detailed look at the applicant’s past and current situation and provide them a copy. And you’ll need to hold the position open for at least three days to give the applicant time to explain errors and deal with the situation.

So, while you can still run background checks, you’ll have to be judicious in how you run them and how you hire in New York City. So how do you balance the needs of protecting yourself against negligent hiring suits while also staying on the right side of the new law?

Where Next?


Share data and concerns in equal measure.

To start with, remove any sort of inquiry or background check language from your applicants and job postings, as the law bans it. Make sure anyone involved in hiring is fully briefed on the new law, and that they understand where background checks now fit in the workflow process. Importantly, if an employee chooses to disclose their history before an offer is made, managers should inform tthem that’s not relevant to the process at the time.

Next, work out an adverse action procedure that’s in compliance with the law. Here, New York City’s form is useful because it forces employers to ask a series of questions they really should be looking at anyway: How long ago was the offense? What was its nature? Does it have any sort of bearing on the job and its duties? What are the applicant’s connections to the community? These should all be a factor in any hiring decision with a potential adverse action, so embrace it as an opportunity to add this thoughtfulness to your process.

Finally, there’s holding the job open and giving the applicant time to respond. Ensure that this always happens, and take the initiative in contacting the applicant if the deadline is coming up. Usually, in the case of errors, you’ll hear quickly, but you may need to act a bit more in the case of criminal activity unrelated to the job.

The best policy, beyond New York’s new law, is ultimately simple. Use background checks judiciously; make them a part of your hiring process, not the whole process; and get the best data.

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