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The New York City Fair Chance Act (FCA) continues to evolve. In August, the New York City Commission on Human Rights (CCHR) amended rules to establish procedures regarding unlawful discrimination based on an applicant’s criminal history. As of the writing of this statement, the Commission’s informal interpretation suggests a two-report background screening process.

The CCHR’s interpretation of the law states that a “true” conditional offer of employment cannot be made unless employment, education and other non-criminal aspects of a background check are conducted first. Then, only after the conditional offer is made can the employer inquire into criminal history.

The background screening industry does not agree with this interpretation. There are significant concerns surrounding the impracticality of this two-step process for employers, applicants and consumer reporting agencies. A two-step process would:

  • Confuse candidates with more paperwork and disclosures
  • Deny candidate access to important non-criminal information
  • Severely strain employers and consumer reporting agencies
  • Dictate costly technology adjustments and upgrades

Corporate Screening, working in collaboration with the National Association of Professional Background Screeners (NAPBS) assembled to dispute this legislation with the city. We do not believe a plain interpretation of the law requires a two-step background check process or that the Fair Chance Act’s statutory language and interpretative guidance gives adequate notice to employers.

As a result, the CCHR recently updated their FAQs to publicly confirm its position. However, just days after posting this information online, it was removed.

What does this mean for you? We are hopeful the Commission is listening to our concerns and will work to solve the impracticalities of their amended rules. In the meantime, we advise all New York City employers to review the Fair Chance Act closely with legal counsel. While we fully support the intentions of Fair Chance legislation and appreciate the Commission’s efforts, we cannot support this solution. We have offered to collaborate with the Commission to develop a practical solution that benefits all stakeholders.

You can depend on Corporate Screening to serve as your advocate. We’ll continue to work on behalf of our NYC-based clients on this important initiative and keep you posted as details become available.