By: Joseph W. Carbonaro, Esq. & H. Geoffrey Langner –1
On July 29, 2015, New York City enacted a law that prevents employers from asking job applicants in the initial hiring stage if they have a criminal record. The law is commonly and accurately called the “Fair Chance Act.” Before its passage, many employers refused to hire applicants (or fired current employees) because of a criminal record despite their qualifications for the job. Now, applicants and current employees with a criminal record have further protections. Employers must weigh various factors against an applicant’s convictions, and not refuse to hire someone for a position, or dismiss them from their current job, simply because they have a criminal record. The Fair Chance Act expressly and clearly creates procedures for employers and applicants to follow and provides certain legal protections to promote fairness in the hiring and firing processes. Further, it allows employers to focus on hiring applicants on merit rather than past mistakes.
Consequently, there is a larger pool of applicants from which to hire, and more individuals can obtain gainful employment. Even though this law seems to favor employees and applicants, it also helps employers. For example, if you are considering someone for a position but find out that the applicant has a criminal record, as an employer, you may decide the person is too great a liability and that the applicant’s potential to break the law puts you at risk of litigation. But the FCA gives employers some cover on this. If employers follow the procedure the FCA creates, should there be a problem with the employee and you are sued for something he/she did, one viable defense is that the FCA did not allow you to consider the person’s prior criminal history. In other words, you followed the law in the hiring process and the law says you cannot consider a person’s criminal record except under certain circumstances.
The procedure that the FCA creates is simple and fair. When hiring, employers who are bound by the Fair Chance Act may only ask an applicant about their criminal record once the employer has extended a conditional offer of employment.
If you are asked on a job application for employment in New York City whether you have ever been convicted of a crime, have a pending criminal case or have been arrested, this is an illegal question and you may choose not to answer it. Before an offer of employment is extended, there can be no mention of an applicant’s criminal record on job postings, during the interview process, or as a requirement of a background check. This includes asking about an applicant’s conviction history on an application. Employers can only inquire into an applicant’s criminal history once a conditional offer is made. At this point, the applicant must disclose any and all felony and misdemeanor convictions if asked about them, but applicants are nonetheless still afforded protections at this stage if the answer to the question is yes.
Once an employer finds out about a criminal record, the employer may choose not to hire the applicant, but an employer must do three things before making its final decision. First, the employer must provide the applicant with a copy of the background check performed; second, it must provide a written evaluation using the Fair Chance Act factors, 2 and, third, hold the job open for at least three (3) business days after the employer conveys its decision to revoke its offer to give the applicant time to respond. The tricky part for employers is applying the FCA factors properly.
2– The Fair Chance Act factors include:
(a) New York public policy (which encourages employers to hire those with criminal records);
(b) Functions of the job; whether the criminal record has any impact on one’s ability to perform the functions of the job;
(c) Time since the conviction(s);
(d) Age at the time of the conviction(s); the severity of the conviction(s);
(e) Mitigating factors such as letters of recommendation from therapists, counselors, teachers, religious leaders, probation officers, etc. or;
(f) Whether one has a certificate of relief from disabilities or a certificate of good conduct, as this requires an employer to presume the prospective hiree is then rehabilitated.
Perhaps the most important and difficult part for employers is determining whether the type of conviction is relevant to the position. For example, if the position is for a bank teller and the applicant has been convicted of bank robbery, that may not be the right job for this applicant. But if the conviction is for, say, DWI and the job is a secretary position, there is no connection between the two. Unless the secretary’s responsibilities include driving other employees around town, the job responsibilities have no relationship to driving while intoxicated. These are two of the more obvious examples. It gets tougher when the convictions involve drug crimes which people tend to view unfavorably. Anyone with a drug conviction might be a risk because there is a chance that person may use or distribute drugs on the job. In a case like this, the employer may want to consider how old the conviction is, whether the conviction was for sale or simple possession, the type of drug involved, the person’s age at the time of conviction, and any evidence of rehabilitation, such as completion of a drug program or a certificate from the Court that shows the person has been rehabilitated.
How the Fair Chance Act Benefits Both Employers and Potential Employees
This process helps balance the interests of the employer (to have productive employees) and applicants who have criminal records to have the same opportunity as anyone to be employed. It is important to note, however, that an employer can require the job offeree (meaning the person to whom the offer of employment was made) to submit to a background check and if the offeree does not comply, the employer can revoke the offer without any further analysis. Furthermore, employers can never ask about non-convictions and sealed convictions, and an applicant should never disclose them if asked about them. Once the process is completed, there are circumstances that allow an employer to refuse to hire, which are:
(1) when there is a direct relationship between the conviction and the job sought and
(2) the conviction creates an “unreasonable risk” to people or property.3 These determinations can only be made, however, after an analysis has been conducted using the Fair Chance Act factors-1.
An employer’s failure to follow these guidelines leaves them open to civil penalties, including but not limited to, reinstatement (if terminated wrongfully), back and front pay, emotional distress damages, compensatory damages, and attorney’s fees. The New York City Commission on Human Rights takes employment discrimination seriously and rigorously investigates all complaints brought before it to ensure full and proper enforcement of NYC Human Rights Law. But more than making a complaint with the Commission, you can file a lawsuit against the employer if you believe you were fired or not hired due to a criminal conviction. Employers will be well-advised to consult with counsel in close cases and to have good documentation that the FCA process was followed.
This office is well-equipped to assist both employees and employers in any FCA-related matter.
1 H. Geoffrey Langner is a student at Wake Forest University School of Law, Class of 2025 and is a summer intern for Carbonaro Law, PC.