Rules Regarding the Fair Chance Act
Proposed Rules: Closed to Comments (View Public Comments Received:2)
Statement of Basis and Purpose of Proposed Rule
The New York City Commission on Human Rights (“the Commission”) is proposing to amend its rules to establish certain definitions and criteria around procedure and application of the Human Rights Law provisions regarding unlawful discrimination on the basis of criminal history against job applicants and employees, and applicants for licenses, registrations and permits, enacted by Local Law No. 63 of 2015, the Fair Chance Act (“the FCA”). These proposed rules will amend title 47 of the Rules of the City of New York by amending section 2-01 to define terms used in the Human Rights Law and update the definition of “domestic partners” to reflect the definition contained in the Administrative Code. The rules will also add a new section, section 2-04, to specify chargeable violations under the Human Rights Law as that law has been amended by the FCA, further define and clarify terms and requirements in furtherance of the intent of the FCA, establish specific guidelines and procedures around enforcement and obligations of employers and those evaluating individuals for licenses, registrations, permits and credit, and clarify when and under what circumstances an employer can withdraw a conditional offer or take an adverse employment action against an applicant or employee based on their criminal history. The proposed rules will also create a discretionary mechanism for the Commission to resolve commission-initiated charges of certain per se violations under the FCA by offering eligible respondents an option for expedited resolution. This process, called Early Resolution will allow a respondent to bypass a full investigation and a hearing at OATH, by admitting liability, and complying with a penalty. The monetary fine associated with the penalty is based on the penalty schedule set forth in the rules. By assessing penalties based upon employer size, the penalty schedule recognizes the impact of the discriminatory action on the public and is designed to ensure that the penalty will incentivize compliance with this program, deter future violations, and educate employers about their obligations under the law. The monetary fines are proportional to the civil penalties awarded in cases of per se violations that come before the Commission.
The proposed rules will:
- Amend title 47 of the Rules to establish definitions for “Applicant,” “Adverse Employment Action,” “Article 23-A Analysis,” “Article 23-A Factors,” “Business Day,” “Conditional Offer of Employment,” “Conviction History,” “Criminal Background Check,” “Criminal History,” “Direct Relationship,” “Domestic Partners,” “Fair Chance Process,” “Human Rights Law,” “Inquiry,” “Licensing Agency,” “Non-Convictions,” “Per Se,” “Statement,” “Temporary Help Firms,” and “Terms and Conditions.”
- Establish per se violations, as defined by these rules, of the new provisions added by the FCA.
- Clarify the types of questions and statements relating to criminal history that are prohibited under the FCA.
- Explain the meaning of a conditional offer and establish the limited circumstances under which an employer can revoke a conditional offer.
- Explain what an employer should do if they inadvertently come to learn about an applicant’s criminal history prior to making a conditional offer.
- Clarify the procedure that must be followed by an employer upon learning of an applicant or employee’s criminal history and what steps must be taken before revoking a conditional offer or taking an adverse employment action.
- Establish clear guidelines that employers must follow when considering whether and how applicants and employee’s criminal convictions or pending cases relate to the duties of a prospective or current job or would pose an unreasonable risk to the property or the safety or welfare of specific individuals or the general public.
- Establish what information an employer must provide to an applicant or employee if a determination is made to revoke a conditional offer based on their conviction history or pending case and clarify how an employer must evaluate an applicant or employee’s request for more time.
- Require an employer to consider any documentation that the applicant or employee presents to support their assertion that the information on the background check contains an error.
- Clarify the exemptions under the FCA.
- Create a discretionary mechanism for the Commission to respond to charges of per se violations under the FCA by allowing the Commission’s Law Enforcement Bureau to send employers or licensing agencies an Early Resolution Notice.
- Clarify that employers may not request information or inquire about the non-convictions of applicants or employees and may not deny or take any adverse actions against applicants or employees based on non-convictions.
- Clarify that individuals with pending criminal cases are protected by the FCA.
- Update the rule’s definition of “domestic partners” to reflect the definition contained in the Administrative Code.
The Commission’s authority for these rules is found in sections 905 and 1043 of the New York City Charter.