The New York City Commission on Human Rights recently released new guidance called the Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination based on Criminal History. The new guidance clarifies a few points that employers need to note when using criminal background checks to hire employees in New York City. Here’s what New York City-based employers need to know.
Two-Step Screening
Employers should break background checks into two parts. Before issuing a job offer, employers can run a non-criminal background check. After extending an offer, the employer can then ask about the applicant’s criminal history and run a criminal background check. Since motor vehicle reports can include criminal and non-criminal information in the same report, motor vehicle reports shouldn’t be requested until step 2.
The Commission realizes that some employers won’t be able to enact this 2-step screening process. In that case, the employer should enact a system to separate non-criminal information from criminal information, so hiring managers only have access to any criminal information after extending a job offer.
Revised Consent Forms
Starting now, employers should revise their processes to include two separate consent forms for background checks: 1 for non-criminal screenings and 1 for criminal screenings.
Exemptions
Companies that are subject to legally mandated background checks are exempt from this new guidance. But all employers must follow the Fair Chance Act, even for jobs that legally require a background check.
In those cases, employers are allowed to conduct a criminal background check before extending a conditional offer. They can disqualify an applicant based on a conviction as long as the employer provides the applicant with:
- Copies of any information used to disqualify the applicant
- Relevant legal standing for the exclusion
Guidance on Using Findings from Background Checks
Employers can’t deny employment based on an applicant’s pending cases or conviction history unless there’s a direct relationship between the pending case or conviction and the specific job in question. Employers also can’t rescind a job offer based on non-convictions.
Splitting the background check process into two stages will help employers and hiring managers to abide by this guidance. Since the criminal background information won’t be visible to hiring managers until after extending an offer, hiring managers can focus on finding the right applicant for the job rather than letting bias based on criminal history creep into their decision-making process.
Guidance on Withdrawing a Job Offer Based on Criminal History
In cases where the nature of an applicant’s criminal history disqualifies the applicant from completing the job, employers must:
- Disclose in writing that the job offer has been rescinded based on the applicant’s criminal history
- Provide the applicant with a written copy of the company’s Fair Chance Analysis, and;
- Allow the applicant at least five business days to respond with any concerns surrounding the employer’s decision.
Does your company need support or guidance changing policies to fit this new guidance? We can help! Contact us or request a quote today.