New York City’s Fair Chance Act Notice

New York City’s Fair Chance Act became effective last month. This is the ban-the-box ordinance that prohibits most employers from inquiring about criminal history until after a conditional offer of employment is made.

The City’s Commission on Human Rights has issued its “Fair Chance Act Notice” that is to be used in compliance with the Act. Employers are required to complete the Fair Chance Act Notice after a conditional offer is made and a criminal history report is obtained, but before an adverse employment action is taken. This appears to be written to allow employers to provide the Notice at the same time as they provide pre-adverse-action notices under the Fair Credit Reporting Act.

The Notice consists of three sections. Section one informs the applicant that a criminal check was made and that a copy of the report is being provided to the individual. It invites the applicant to communicate any errors found on the consumer report and give additional information that he or she would like the employer to consider when making an employment decision. Section two is the Article 23-A evaluation required by the Act. Employers must indicate which other factors it is considering before making an employment decision. Finally, the third section is a notice of the employer’s reason for taking an adverse action against the applicant (that is, if no other information is provided).

Any adverse employment action must be delayed until the applicant is given at least three business days after receipt to provide additional information for consideration. An important note for employers is that this three business-day period is from the applicant’s receipt of the notice, not the employer’s sending of the notice. Employers may need to investigate the amount of time mail takes to get from its facilities where it mails these notices to residential addresses in the New York City area, in order to determine a safe amount of time to wait.

Note that employers are permitted to use a form of notice that is different from the Notice, so long as it is “substantially similar.” We believe that this would allow employers, for example, to change the arrangement of the eight factors on the form or eliminate the numbered lists in some questions. We do not believe, however, that it would allow employers to make substantive changes to the language of the notice.

The Fair Chance Act Notice is available on the Commission’s website (and by link below). The Commission will be issuing interpretative legal guidance on the Fair Chance Act, followed by a formal rulemaking process at a later date. 

What This Means To You:

1.    New York City’s Fair Chance Act becomes effective October 27, 2015.

2.    The City’s Commission on Human Rights has issued a Fair Chance Act Notice to be used after a conditional offer is made and a criminal history report is obtained, but before an adverse employment action is taken.

3.    GIS is unable to provide this service for you at this time. We are currently evaluating efforts to help facilitate the administering of this form through the system at a future date.

4.    If you have employees in New York City, train hiring managers to not ask questions about criminal history prior to making a conditional offer of employment.

5.    If you have employees in New York City, review your pre-employment forms, adverse action protocol, and Fair Credit Reporting Act disclosure forms with your lawyer.

Go here to view the Fair Chance Act Notice: http://www.nyc.gov/html/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf