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Legal Update

Mar 28, 2016

NYCCHR Holds Public Hearing on Proposed Rules to Fair Chance Act

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On March 21, 2016, the New York City Commission on Human Rights (“NYCCHR”), held a public hearing on the proposed amendments to the Fair Chance Act (“FCA”), which prohibits unlawful discrimination on the basis of criminal history against job applicants and employees.  For more information about the proposed rule, please see our article here.

Constituents and organizations were provided an opportunity to either submit written comments beforehand or give public testimony at the hearing. Below is a brief summary of the hearing:

  • Seven organizations – six of them legal aid organizations supportive of the FCA – testified at the public hearing.
  • A representative of Enterprise Rent-a-Car testified and provided an employer perspective on the FCA. Their testimony asked that the exemptions in the FCA be expanded to allow companies that hire employees with responsibilities that include operating motor vehicles to obtain the applicant’s motor vehicle records.  The representative also argued for the right to disqualify applicants based on their motor vehicle history when operating a vehicle is a requirement of the position, arguing that employees with significant motor vehicle records would endanger customers, other employees, and the general public without the ability to learn and make decisions on the basis of an applicant’s driving record.
  • The New York Staffing Association (“NYSA”) also submitted comments on behalf of employers. The NYSA was highly critical of the proposed rules, and took issue with many sections.  Overall the NYSA asked for more clear-cut direction for employers.
    • First, the NYSA asked that the “Definition of Article 23-A Factors” in the proposed rules be clarified to apply only to convictions and not to “pending cases,” and to clarify employers’ rights and responsibilities with regard to pending cases.
    • The NYSA asked that the definition of “Non-Conviction” in Section 2-01 be simplified to allow employers to easily determine whether criminal dispositions in another state, would be “comparable to a ‘non-conviction’ under New York law.”  According to the NYSA “[it’s] unclear how employrs could possible know this without hiring criminal law experts or lawyers across the country…”
    • Under the proposed rules, an employer is “presumed” to have discriminated against the applicant.  According to the NYSA, this evidentiary burden is inconsistent with the burden of proof in other discrimination cases where the plaintiff is required to carry the burden of proof.  Here, the NYSA asks the rules to reflect that “the plaintiff should be required to carry the [burden of] proof that his or her criminal history was in fact the basis for the employer’s revocation of the job offer.”
    • The current proposed rules require that employers “admit liability” before entering into certain Early Resolution settlements.  According to the NYSA, this “requirement would … defeat the fundamental purpose of settlement … and would only encourage employers to fully litiigate these cases.”
    • Furthermore, the NYSA is seeking clarity with regard to how employers must analyze a “certificate of good conduct” during the rehabilitative process. Specifically, employers are not sure which circumstances would permit them to “reject” a certificate of good conduct.
  • Although they testified separately, all of the six legal aid organizations complimented each other and the FCA. Each organization sought: (1) a requirement that employers ask for rehabilitative information if criminal history is inadvertently disclosed during the application process, prior to the employer’s obligation to engage in an Article 23-A analysis; (2) that the exemptions be narrowly tailored so that employers may advise employees about conflicting federal and state laws that might require background checks, but that applicants should not be disqualified without the employer first engaging in an Article 23-A analysis; (3) that current employees be protected under the law; and (4) that temporary help firms be covered under the law.

We will continue to follow any changes to the FCA and the City Commission of Human Rights’ proposed rule and keep employers updated on these changes.