The hardest thing people convicted of a crime have found is to simply get a job. A process that thousands of New Yorkers go through every day has been closed to anyone convicted of a felony. What is a person supposed to do? How is someone to get their life on track if every employer closes the door with one simple question on an employment application: Have you ever been convicted in a criminal court of law?
The change was a long time in arriving.
In February, the New York City Commission on Human rights introduced new rules proposed as modifications to the City’s Fair Chance Act. The act controls when employers can ask about an applicant’s criminal history. The proposed rules include some notable differences from the Commission’s guidance report issued in November. The committee intends to hold a public discussion in March.
The Commission summarized various areas addressed by the suggested rule changes. They are considered per se violations, indicating that they violate the act regardless of if any adverse action was taken, or any genuine injury to an applicant occurred:
- Circulating an advertisement or publication that suggests any limitation in employment regarding criminal records,
- Uttering any comment relating to a candidate pending detention or criminal sentence before a conditional proposal of work,
- Using employment applications to run a background check,
- Using a standard application intended for multi-jurisdictional use,
- Failure to comply with all of the conditions listed in the Fair Chance Process
Inadvertent Discovery
The proposed changes spell out how employers should proceed if they inadvertently discover an applicant’s criminal history. In these circumstances, the proposed statutes state than an employer is not liable for a violation — unless the employer “further explores” the applicant’s criminal history.
“Direct Relationship” Exception
Under the Act, employers that desire to take an adverse act relying on an applicant’s criminal history must first analyze the criminal history using an eight-factor balancing test. An employer may not withdraw an offer of employment after evaluation of the eight factors. Employers are barred from altering the duties and responsibilities of a position upon learning of an applicant’s criminal history.
To declare the Direct Relationship Exception, the business must connect the nature of the conduct that led to the conviction and the position for which the applicant is applying. Even if there is such a connection, the employer is obligated to examine the eight factors to determine if the concerns may have been mitigated.
To utilize the Unreasonable Risk Exception, a potential employer must recognize, and implement, the eight Article 23-A factors to decide if the employment of the person would involve a prospective danger to property or safety of individuals or the general public.
If you feel you have been discriminated against or unfairly barred from employment because of your criminal history, contact an experienced attorney today.
