Most are familiar with the two-step process for employment background check reports required by the New York City Fair Chance Act (FCA). The first step is performing searches of all relevant records, excluding all records disclosing criminal history information. After the employer considers the information obtained in step one and determines the applicant is the right candidate for the job, the employer must make an offer of employment that is solely conditioned on the applicant passing a criminal history background check. Step two is performing the criminal history background check.

We’ve reviewed legal enforcement guidance provided by the NYC Commission on Human Rights, the NYC agency responsible for investigating FCA complaints, auditing employers’ compliance, and issuing enforcement orders. We’ve also reviewed the Commission’s website, which provides a synopsis of settlements made with employers that have violated the FCA. The settlements date from 2015 (when the FCA was enacted) through 2022. Our review indicates that the timing of the conditional offer of employment is not optional – it can only be done after step one is completed.

This point needs to be emphasized because it appears that some NYC employers are under the impression that a conditional offer can be made before requesting any background check and that this approach complies with the FCA. The legal guidance from the Commission states otherwise:

Under the [FCA], a conditional offer is conditioned on the results of a criminal background check and, if applicable, the results of a medical exam as permitted by the Americans with Disabilities Act (“ADA”). This review constitutes the last step of the hiring process. Employers cannot circumvent the requirements of the [FCA] by calling an offer “conditional” before they have assessed all other employment qualification factors (e.g., academic records or references) aside from criminal history and medical information. (See NYC Commission on Human Rights Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination on the Basis of Criminal History,  Section V.B. “Additional Protections for Job Applicants During the Hiring Process” first paragraph.)

Moreover, the fact that NYC employers may show that no job applicants had been treated adversely based on receiving a conditional offer before requesting any background check is not a defense to an FCA violation. A 2017 settlement synopsis from the Commission’s website shows that a company paid a $10,000 penalty for an FCA violation even though it was shown that none of the company’s job applicants were treated adversely. (See NYC Human Rights – 2017 Settlement Highlights, “City Practice Group (CityMD) Pays $10,000 Civil Penalty and Reforms Job Application and Policies to Comply with Fair Chance Act and Stop Credit Discrimination in Employment Act.”)