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New York City Commission on Human Rights Publishes a Form for the Article 23-A Analysis Required Under the Fair Chance Act

October 27, 2015

On October 23, 2015, the New York City Commission on Human Rights (“Commission”) published a form for employers to use to perform the Article 23-A analysis required under the New York City Fair Chance Act (“Fair Chance Act”).  A copy of this form and a new fact sheet regarding the Fair Chance Act are available on the Commission’s website, at: http://www.nyc.gov/html/cchr/html/coverage/fair-chance.shtml

Background

The Fair Chance Act is a new New York City law that takes effect on October 27, 2015.  This law restricts an employer’s ability to inquire about applicants’ criminal histories.  (See Mayor de Blasio Signs “Ban the Box” Law Prohibiting Pre-Offer Inquiries By New York City Employers Regarding Applicants’ Criminal Histories.) 

The Fair Chance Act also requires employers to follow certain steps before taking an adverse action (e.g., rescinding a job offer) based on the results of a permissible criminal history inquiry.  These steps are:

  1. provide a written copy of the criminal inquiry to the applicant;
  2. perform an analysis of the applicant in accordance with Article 23-A of the New York Correction Law,[1] and provide a written copy of such analysis to the applicant in a manner to be determined by the Commission; and
  3. after giving the applicant the inquiry and analysis in writing (described above), allow the applicant a reasonable time to respond (i.e., no less than three business days) and during this time, hold the position open for the applicant. 

The Commission’s Article 23-A Evaluation Form

The new form published by the Commission sets forth the analysis (described in No. 2 above) that an employer must conduct under Article 23-A.  The Commission’s website explains that employers may use the Commission’s Article 23-A form or the form may be adapted to an employer’s preferred format, as long as the material substance (i.e., “capturing the essence of the Article 23-A analysis”) is not altered. 

The Commission also advises on its website that it will be issuing interpretative legal guidance on the Fair Chance Act, which will be followed by a formal rulemaking process. 

Next Steps

Covered employers should review the Commission’s new Article 23-A evaluation form and begin using it (or a form adapted from the Commission’s form) to comply with the adverse action requirements in the Fair Chance Act.  Employers should also ensure that they are familiar with their other obligations set forth in the Fair Chance Act and that they only conduct criminal history inquiries as permitted under this new law.

Please do not hesitate to contact any of our attorneys if you have any questions regarding your company’s use of this new form, or need assistance complying with the Fair Chance Act.


[1]Article 23-A requires that an employer shall not deny employment (nor take any adverse action) based on an individual’s conviction record unless there is a determination that:  (1) there is a direct relationship between one or more of the previous criminal offenses and the employment sought (or held by the individual); or (2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.  In making this determination, Article 23-A requires that certain factors (set forth in Article 23-A) be analyzed by the employer.