NYC Commission on Human Rights interprets the Fair Chance Act to require a two-step screening process, with the final step conditioned solely on a criminal background check

The New York City Fair Chance Act (FCA)—which went into effect on Oct. 27, 2015—prohibits most employers operating within New York City (NYC) from making any inquiries into an applicant's criminal history until after a conditional offer of employment is made.

The New York City Commission on Human Rights ("Commission") is tasked with enforcing the FCA. According to the National Association of Professional Background Screeners (NAPBS), an industry association representing background screening providers, the Commission has recently indicated that it interprets the FCA to require a two-step, bifurcated screening process, specifically separating criminal components of a background check from all other components both in time (with the criminal portion to occur later) and space (criminal portion to be on a separate report). According to NAPBS, the Commission has stated that its interpretation is based on a reading of the FCA's "conditional offer" language to require that the final stage of the screening process be conditioned solely on the criminal background check.

NAPBS has also noted that the Commission's recent activity has indicated that it may be pursuing this two-step screening process with employers in NYC, and appears to be starting with very large employers. There has been no indication that the Commission is looking to impose any form of penalty on employers at this point in time.

BIG will continue to monitor the FCA's interpretation and enforcement, and will provide updates to clients when additional information becomes available.

Source: NAPBS, Dec. 6, 2017

Posted: December 20, 2017