Ban the Box: Fair Chance Act Updates for 2022

9 minutes read

Did you know that 70 million Americans have a criminal record? This can have a significant negative impact on their ability to secure a job. 

It has been just over a year since New York City’s Fair Chance Act (FCA) expanded its existing employment protections for applicants with a criminal record. Even if your business functions outside of New York City, it is important to be aware of similar compliance changes in your own cities or states. While New York City does not speak for all those that have ban-the-box legislation, it certainly has a history of leading them.

Currently, the federal government, 37 states and 150 municipalities have “ban the box” policies, and more are following suit. These laws, which restrict when an employer can ask a job applicant about their criminal history, have continued to evolve over the past two decades and seek to delay questions about criminal history until after offers of employment have been made to qualified candidates.

New York City’s latest adjustments to its legislation will likely spark ban-the-box changes throughout other states, cities and local agencies. Let’s break down what’s changed and what will remain the same.

General Overview of FCA Changes

The FCA’s recent amendments focus primarily on uncovering potential employees’ criminal histories and responding compliantly. Rest assured, New York employers are still protected from having to continue an offer of employment to an applicant who would create an unreasonable risk to property, their employees or the community if hired.

Now, however, employers must complete all background checks other than criminal ones (such as employment history or education) before conditional employment offers and criminal background checks can be made in that respective order. In addition, a full analysis of criminal arrests and charges of both applicants and employees is expected.

Luckily, the majority of New York City’s ban-the-box requirements have not changed. The existing criteria for determining whether an offer of conditional employment can be withdrawn based on a job applicant’s conviction history are still required—with one exception. Job applicants are now allotted at least five business days to respond to the employer’s conditional offers instead of three.

A complete list of all the factors applicable to evaluating an applicant’s conviction history can be found here.

The FCA’s Expansion

In addition to the aforementioned changes, several other amendments were created to expand New York City’s ban-the-box legislation. Here are the most noteworthy:

  • Criminal history cannot be mentioned in advertisements. Any fliers, job descriptions, job applications or related materials cannot include targeting language against those with a criminal past. Phrases such as “no felonies,” “background checks required” or “clean records only” are no longer compliant under the FCA. In addition, it is now prohibited to make neutral statements about criminal background checks to applicants before making a conditional offer of employment.
  • A two-step background check process is required. A criminal background check can only be performed and evaluated after a conditional offer of employment is made to an applicant. In other words, employers must conduct all noncriminal checks before making any conditional employment offers and criminal background checking processes. 
  • Criminal background check authorizations cannot be made prior to employment offers. Employers are not permitted to specifically seek authorization for a criminal background check before making a conditional offer of employment. The authorizations to conduct initial, noncriminal background checking should revise “background check” to “consumer report” or “reference check” instead so there is no room for misunderstanding.
  • Adverse employment actions are limited during pending criminal accusations, proceedings and convictions. The FCA amendments prohibit employers from taking action against applicants or current employees unless it can be determined that a conviction (or a pending case) has a direct connection to their job or that employing them would create undue risk. See the Society for Human Resource Management’s FCA factors pertinent to pending cases and convictions for more information.
  • Paid and unpaid leave are permitted during the FCA process. To comply with the FCA process, employees may be put on paid or unpaid leave depending on their available paid time off. However, making an employee wait more than five business days for their criminal history report could violate the New York City Human Rights Law (NYCHRL). Once the FCA report is received and a decision is made about the potential employee, candidates are permitted five days to respond. This allows them to provide evidence of personal development or rehabilitation and demonstrate that they are fit to fulfill your conditional offer as an employee.
  • Adverse actions can be taken against intentional misrepresentations of criminal records. Employers may choose to dismiss a job applicant or employee who makes deliberate falsifications related to arrest or conviction records. To do so, however, a duplicate of the documents showing the misrepresentations must be produced and the individual must be given at least five business days to respond. 
  • Nonconvictions cannot be part of pre-employment or ongoing employment processes. There are several misdemeanors or “petty crimes” which employers cannot consider as convictions. These actions cannot justify passing on an applicant or employee. Some examples of these include trespassing, disorderly conduct, failing to respond to a parking ticket, youthful offenses, etc.

While exemptions are possible, most of them do not apply to the hourly workforce. As your state or city’s laws evolve, make sure your current job postings, applications and background screening practices are up-to-date and fully compliant

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