Fair Chance Act: Frequently Asked Questions

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1. Can an employer state that a "background check" is required for a position, or put "background check required" in a job advertisement or application?

No, an employer cannot state that a background check is required nor can an employer put on a job advertisement or application that a background check is required, unless the position is specifically exempted under the Fair Chance Act. The Fair Chance Act defines prohibited inquiries and statements broadly, including those that express any limitation, directly or indirectly, based on a person's arrest or criminal conviction.

If an employer wishes to inform an applicant that it will investigate the applicant's background prior to a conditional offer, it should specifically identify what it will investigate rather than use the blanket term "background check." For example, an employer can state that it is conducting a "reference check," an "employment or education verification," or a "resume authentication."

2. After a conditional offer of employment, what can an employer ask an applicant about his/her arrest/conviction history?

After a conditional offer, an employer may ask an applicant if s/he has any history of convictions. An employer may also ask about the circumstances that led to any conviction, including the arrest leading to the conviction and original charges, to determine how serious the applicant's conduct was. However, an employer may never ask about arrests that did not lead to convictions; convictions that were sealed, expunged, or reversed on appeal; convictions for violations, infractions, or other petty offenses such as "disorderly conduct;" resulted in a youthful offender or juvenile delinquency finding; or convictions that were withdrawn after completion of a court program. The following is an example of a permissible question after a conditional offer:

Have you ever been convicted of a misdemeanor or felony? Answer "NO" if your conviction: (a) you have never been convicted of a misdemeanor or felony; (b) the misdemeanor or felony was sealed, expunged, or reversed on appeal; (c) was for a violation, infraction, or other petty offense such as "disorderly conduct;" (d) resulted in a youthful offender or juvenile delinquency finding; or (e) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.

3. Do the protections of the Fair Chance Act apply when a person has convictions from outside New York, particularly if the conviction is not a crime in New York?

Yes, the Fair Chance Act applies to all criminal convictions, no matter where they occurred.

4. Does the Fair Chance Act apply to volunteers or unpaid interns at an organization?

No, the Fair Chance Act, as part of the New York City Human Rights Law, does not apply to volunteers, but it does apply to unpaid interns. An intern is covered under the New York City Human Rights Law if: (a) the individual works for a fixed period of time at the end of which there is no expectation of employment; (b) the individual performing the work is not entitled to wages for the work performed; and (c) the work performed: (i) supplements training given in an educational environment that may enhance the employability of the intern; (ii) provides experience for the benefit of the individual performing the work; (iii) does not displace regular employees; and (iv) is performed under the close supervision of existing staff. N.Y.C. Admin. Code § 8-102(28).

5. Does an employer's conditional offer have to be in writing?

No, the conditional offer may be made orally. However, there are other important steps in the employment process that must be made in writing. Specifically, if an employer is considering withdrawing a conditional offer after reviewing an applicant's conviction history, it must provide certain information in writing. The employer's analysis of an applicant's conviction history under Article 23-A must be in writing along with a copy of any background check the employer used in making its determination.

6. If a position is exempt from the Fair Chance Act, does the employer still have to follow Article 23-A with respect to the hiring process for that position?

Yes, the employer must still make employment decisions consistent with Article 23-A. Although the employer can consider an applicant's conviction history before making a conditional offer for positions that are exempt from the Fair Chance Act, the employer must still consider the Article 23-A factors in making a decision not to hire that person. Applicants who are denied employment may request an explanation, which must be provided within 30 days under New York Correction Law § 754. The only positions that are exempted from the requirements of Article 23-A are law enforcement positions.