NYC Considering Fair Chance Act Amendments

The New York City Commission on Human Rights (NYCCHR) is considering amended rules that govern the Fair Chance Act. The comment period closed in September so employers should stay on alert for when the final changes are pushed through.

Already one of the most restrictive laws of its kind, the proposed rules would modify the Fair Chance Act in several ways:

• Extend the waiting period from 3 to 5 business days (between sending the pre-adverse action notice along with the fair chance analysis and the final adverse action notice).
• Add new protections for individuals with certain criminal cases including pending cases, unsealed violations, unsealed non-criminal offenses and adjournments in contemplation of dismissal.
• Add new Fair Chance employment protections for current employees.
• Remove the early resolution process for NYCCHR initiated Fair Chance employment complaints.

The proposed rule amendments do not seem to remove the requirement that a conditional offer only be conditioned upon:

• (i) the results of a criminal background check
• (ii) the results of a medical exam, and
• (iii) other information that could not have been reasonably known before making the offer.

This means employers will still need to split their screening process into two phases if they conduct more than a criminal background check—such as employment and education verifications which should be conducted pre-offer. As a reminder, the prior rule changes allow driving records checks to be performed post-offer along with the criminal background check.