Bifurcated Background Checks: Changes in the NYC Fair Chance Act

In recent years, legislators have developed a broad understanding at both the state and federal levels about the negative impacts that a criminal background check can have on the formerly incarcerated. While background screening provides employers and organizations with as much information as possible, that information can create a prejudice that leads to the loss of job opportunities. The result is a difficult path to re-entry into society for former criminal offenders, not to mention businesses missing opportunities to hire fresh talent.

Addressing these concerns has been a focus of labor activists in recent decades, and the proliferation of "ban the box" laws in many locales nationwide reflects the success of a diverse lobbying effort. Today, there is a Fair Chance Act in force at the federal level, requiring contractors doing business with the federal government to modify their hiring procedures. As is typical with ban the box laws, the rules state that employers must determine a candidate's suitability and make a job offer that is conditional on a background check.

Employers must make a concerted effort to stay up to date on the latest changes in these regulations, since violations can lead to legal exposure or fines. In New York City, for example, the municipality's Fair Chance Act recently underwent a series of revisions that prompted employers to reconfigure the way that they conduct background screenings on candidates.

Not all screening procedures focus on criminal history. In many cases, an employer may want or need to verify additional details behind what a candidate claims on their application, which could include information about prior education, employment history, and more. 

According to a new amendment to the NYC Fair Chance Act, employers can no longer wait to conduct these checks alongside a criminal background check. Instead, non-criminal screening must take place before they extend a conditional offer of employment. Employers can’t use findings from such a screening to rescind a conditional offer any longer. The assumption by legislators is that red flags in these checks should preclude a conditional offer. 

Beyond these changes, employers will need to be more careful about how they consider certain criminal history items, such as pending cases and recent arrests. This change applies to both applicants and existing employees subject to ongoing criminal background monitoring. Before taking adverse action against an individual, the employer must evaluate the severity of the crime and whether it has any direct relation or impact on the duties of the job.

These changes went into effect in July 2021, so NYC-area employers should already have updated their policies and procedures. However, these rapid alterations to the law reinforce the idea that employers must keep a close watch on screening-related procedures in their area. Working with a service provider such as backgroundchecks.com, which can assist businesses with staying on top of changes in legislation, can foster the peace of mind that employers need to navigate the hiring process with confidence.