Since October 2015 the New York City Fair Chance Act (NYC Administrative Code §8-107(11-a)) (Fair Chance Act) has regulated the hiring process with respect to an applicant’s criminal conviction history. Among other things, employers in New York City may not make an inquiry or conduct a search of public records “for the purpose of obtaining an applicant’s criminal background information” until after the employer “has extended a conditional offer of employment to the applicant.” Further, after the employer has made a timely inquiry into an applicant’s record and finds a conviction history, the employer may not refuse to hire the applicant on that basis unless the employer (1) gives the applicant a written copy of the inquiry, (2) conducts an analysis under New York Correction Law Article 23-A and gives the applicant a copy of that analysis, and (3) provides the applicant with a reasonable time (at least three business days) to respond, during which time the employer must hold the position open for the applicant.

Compliance with Article 23-A is therefore subsumed within the Fair Chance Act. An employer might comply scrupulously with all of the other protocol set forth in the Fair Chance Act, but nonetheless fall short in following the dictates of Article 23-A. This article will review Article 23-A and discuss the statute’s interplay with the Fair Chance Act, with reference to guidance by the New York City Commission on Human Rights and case law.

The Operation of Article 23-A

Article 23-A addresses the licensure and employment of individuals who have previously been convicted of a criminal offense. Enacted with the aim of eliminating “bias against ex-offenders which prevented them from obtaining employment, … Article 23-A sought to remove this obstacle … by imposing an obligation on employers and public agencies to deal equitably with ex-offenders while also protecting society's interest in assuring performance by reliable and trustworthy persons.” Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 611 (1988). Thus, the general rule prohibits an employer from denying an application for employment simply because the applicant previously has been convicted of one or more criminal offenses. Correction Law, §752. However, if either of two exceptions are met, the employer may deny an application. First, employment may be denied where there is a “direct relationship” between the previous criminal offense and the specific employment sought. Correction Law, §752(1). Here, the “nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the” job sought. Correction Law, §750.

Second, employment may be denied based upon a prior criminal conviction where the granting of “employment would involve an unreasonable risk to property or to the safety … of specific individuals or the general public.” Correction Law, §752(2). The statute contains no definition of “unreasonable risk.” Rather, “a finding of unreasonable risk depends upon a subjective analysis of a variety of considerations relating to the nature of the … employment sought and the prior misconduct.” Bonacorsa v. Van Lindt, 71 N.Y.2d at 612. Correction Law §753(1) sets forth eight factors that “shall” be considered in making a determination whether the employment would pose an “unreasonable risk” to property or persons:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

Notably, an employer must also consider a certificate of relief from disabilities or a certificate of good conduct. Although the certificate “shall create a presumption of rehabilitation in regard to the offense,” employment may nevertheless be denied after consideration of the other enumerated factors. Correction Law, §753(2); Bonacorsa v. Van Lindt, 71 N.Y.2d at 614.

The Fair Chance Act and Article 23-A

The New York City Commission on Human Rights (the Commission) is charged with enforcing the Fair Chance Act. According to the Commission’s Legal Enforcement Guidance (which relies heavily on existing case law), “an employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction record.” NYC Commission on Human Rights Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 (2015), Revised 06/24/2016 (the “Guidance”), p. 7. Indeed, many employers (and practitioners) assume erroneously that a conviction will automatically disqualify an applicant regardless of the responsibilities of the position, or they fail to conduct the Article 23-A analysis in the manner directed by case law and the Commission.

Instead of presuming disqualification, employers must conduct the Article 23-A analysis by defining the duties and responsibilities of the job before extending a conditional offer of employment (and may not change those duties and responsibilities after making the conditional offer. Guidance, p. 7. Employers “must solicit the information necessary to properly consider each Article 23-A factor, including the applicant’s evidence of rehabilitation, … must evaluate each Article 23-A factor, … cannot ignore evidence favorable to the applicant … and they cannot disproportionately weigh any one factor over another.” Guidance, pp. 7-8 (citations omitted). Finally, it is important for employers to “consider applicants’ successful performance of their job duties in past employment, along with evidence that they have addressed the causes of their criminal activity.” Id., p. 8. The Commission has posted on its website a Fair Chance Notice, intended to be used to inform applicants of the Article 23-A analysis that the employer performed; the Notice also serves as a helpful outline for employers by including each of the factors required to be considered.

Courts have frequently rejected employers’ assertions of compliance with Article 23-A (although most of the reported decisions involve decisions by public agencies, they are nonetheless instructive). Common themes are the failure to consider all §743 factors, including those that favor the applicant, and the failure to engage in analysis instead of merely setting forth conclusions based on speculation. Thus, in Soto v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 26 Misc.3d 1215(A) (Sup. Ct. Kings Co. 2010), the court annulled the denial of an application for employment as a bus driver where the applicant had one conviction for criminal possession of a weapon. The court observed that respondent agency had paid “lip service” to the eight factors set forth in Correction Law §753(1), based its conclusions on “speculative inferences unsupported by the record,” and failed to properly consider evidence of the applicant’s rehabilitation and good conduct. Id. Similarly, in Odems v. N.Y.C. Dep’t. of Educ., 2009 N.Y. Misc. LEXIS 6480 (N.Y. Sup. Ct. Dec. 16, 2009), the court annulled as arbitrary and capricious the denial of an application for employment as a part-time teacher’s aide. The applicant had pleaded guilty to one felony drug charge eighteen years earlier, but subsequently performed extensive volunteer work and had been gainfully employed. Among other things, the court observed that the respondent Board of Education’s denial letter failed to explain how the applicant’s “mistakes … in her distant past directly affected her ability to perform the duties at hand,” and failed to acknowledge the Certificate of Relief from Disabilities issued by Supreme Court. Id. at 7. The court also faulted the BOE’s decision as being “based primarily, if not entirely, on petitioner’s criminal history, with little consideration of the other evidence and statutory factors.” Id., at 12-13. These are not uncommon grounds for the successful challenge of an Article 23-A analysis and should be used as guideposts by a practitioner advising an employer on best practices.

Conclusion

The Fair Chance Act effectively requires compliance with protocol of two statutory schemes. In order to avoid running afoul of the Fair Chance Act, employers need to be familiar with the operation of Article 23-A. By evaluating each enumerated factor set forth §753, and engaging in analysis instead of presumption as to whether there is a direct relationship between the criminal record and the job being offered, or that there is an unreasonable risk to persons or property, employers and their counsel can minimize the risk of violating the Fair Chance Act.

Peter Goodman is the founder of a boutique employment law firm focused on helping individuals and small to mid-sized businesses achieve practical solutions to employment matters through counseling, negotiation and litigation.