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City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise. City agency charged with enforcing the NYCHRL. The NYCHRL covers employers with four or more employees. October 27, 2015, amends the NYCHRL by making it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. If an employer wishes to withdraw its offer, it must give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.

The FCA reflects the City’s view that job seekers must be judged on their merits before their mistakes. 4 the City determined that such discrimination still occurred when applicants were asked about their records before completing the hiring process because many employers were not weighing the factors laid out in Article 23-A. 5 For that reason, the FCA prohibits any discussion or consideration of an applicant’s criminal history until after a conditional offer of employment. Certain positions are exempt from the FCA, as described in Section VII of this Guidance.

While the FCA does not require employers to hire candidates whose convictions are directly related to a job or pose an unreasonable risk, it ensures that individuals with criminal histories are considered based on their qualifications before their conviction histories. If an employer is interested enough to offer someone a job, it can more carefully consider whether or not that person’s criminal history makes her or him unsuitable for the position. If the employer wishes to nevertheless withdraw its offer, it must first give the applicant a meaningful opportunity to respond before finalizing its decision. The FCA applies to both licensure and employment, although this Guidance focuses on employment. Guidance, refers to both potential and current employees.

Any time the FCA or this Guidance requires notices and disclosures to be printed or in writing, they may also be communicated by email, if such method of communication is mutually agreed on in advance by the employer and the applicant. The evaluation process mandated by New York Correction Law Article 23-A. The factors employers must consider concerning applicants’ criminal conviction history under Section 753 of New York Correction Law Article 23-A. Other information the employer could not have reasonably known before the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material to job performance. For temporary help firms, a conditional offer is the offer to be placed in a pool of applicants from which the applicant may be sent to temporary positions. A previous conviction of a crime, either a felony or misdemeanor under New York law,7 or a crime as defined by the law of another state.

A previous record of criminal convictions or non-convictions or a currently pending criminal case. The post-conditional offer process mandated by the FCA, as outlined in Section V of this Guidance. Any words, whether made in writing or orally, for the purpose of obtaining an applicant’s criminal history, including, without limitation, stating that a background check is required for a position. A business which recruits, hires, and assigns its own employees to perform work at or services for other organizations, to support or supplement the other organization’s workforce, or to provide assistance in special work situations such as, without limitation, employee absences, skill shortages, seasonal workloads, or special assignments or projects. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance.

Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond. Taking an adverse employment action because of an applicant’s non-conviction. The FCA does not change what criminal history information employers may consider. Instead, it changes when employers may consider this information. No employer may seek, obtain, or base an adverse employment action on a non-conviction.

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10 No employer may seek, obtain, or base an adverse employment action on a criminal conviction until after extending a conditional offer of employment. After a conditional offer of employment, an employer can only withdraw the offer after evaluating the applicant under Article 23-A and finding that the applicant’s conviction history poses a direct relationship or unreasonable risk. The FCA prohibits the discovery and use of criminal history before a conditional offer of employment. During this time, an employer must not seek or obtain an applicant’s criminal history. Consistent with Article 23-A, an employer’s focus must instead be on an applicant’s qualifications. The following are examples of common hiring practices that are affected by the FCA. Solicitations, advertisements, and publications for employment cannot mention criminal history.

The FCA now explicitly prohibits employers from expressing any limitation or specification based on criminal history in their job advertisements,11 even though such advertisements are already illegal under the existing NYCHRL. Solicitations, advertisements, and publications encompass a broad variety of items, including, without limitation, employment applications, fliers, handouts, online job postings, and materials distributed at employment fairs and by temporary help firms and job readiness organizations. Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check. Employers cannot inquire about criminal history during the interview process. The FCA prohibits employers from making any inquiry or statement related to an applicant’s criminal history until after a conditional offer of employment. Investigations into the applicant’s criminal history, including using public records or the Internet, whether conducted by an employer or for an employer by a third party.