New York City’s Fair Chance Act (FCA), which took effect October 27, 2015, imposes affirmative obligations on covered employers and employment agencies regarding when they may conduct criminal background checks on job applicants, and what process must be followed before making an adverse decision on the basis of an applicant’s criminal history. It is one of the nation’s most comprehensive "ban the box" laws restricting employers’ use of criminal history in the employment process.1 The New York City Commission on Human Rights ("the Commission") released comprehensive interpretive Enforcement Guidance regarding the FCA on November 5, 2015. In February, 2016, the Commission issued proposed regulations, and a public hearing regarding the proposed regulations was held on March 21, 2016.2
Over 15 months after the public hearing, in early July 2017, the Commission quietly and without publicity published the final regulations.3 The final regulations, which take effect on August 5, 2017, expand on and clarify the already burdensome requirements of the FCA, making it more difficult for New York City employers, and particularly national employers doing business in New York City, to screen applicants whose criminal history may affect their ability to do their job or present an unreasonable risk to their business, customers or employees. Employers with a consolidated hiring process used in multiple jurisdictions in particular should carefully review the final regulations to ensure that their process does not constitute a per se violation of the FCA.
Below is a summary of the key provisions of the final regulations. FULL ARTICLE