Background checks have become an essential part of employing a person. They ensure that you are employing someone who fits your culture and can move your company forward. However, they can lead to discrimination against people with criminal records, and that’s why New York has the Fair Chance Act.
Understanding the law around background checks is essential as an employer. It is meant to protect people with criminal backgrounds. There have been amendments to the Fair Chance act that will take effect July 29, 2021, and updating your background check policies is essential.
The two-step criminal background check process
The law requires employers to conduct background checks in two steps to consider a criminal background check. The criminal background check is only to be conducted once a conditional offer of employment is issued. The offer can only be revoked based on medical examination, any information the employer couldn’t have known in advance, or the criminal background check result.
The first step involves conducting a non-criminal background check, where they look at information such as education and employment history. If everything checks out, the employer needs to make a conditional offer of employment before proceeding with step two – a criminal background check. The only exceptions are that criminal background checks are necessary under local, state, or federal law or by a self-regulated organization like those in the financial or insurance industries.
Complete protection for non-convictions
The amendments offer complete protection for non-convictions. This limits how employers can treat non-convictions concerning applicants and employees; Employers can’t ask individuals about, base adverse employment on, or imply an employment limitation on non-convictions. Some of these non-convictions include”
- Cases where the applicant was a juvenile offender
- Cases where the criminal charges were dealt with in favor of the applicant
- Cases where a prosecutor declined to prosecute after an arrest
- Sealed convictions
- Cases that ended up with a non-criminal offense conviction under another state’s law
- Cases that were deemed a violation rather than a felony or misdemeanor
The expansions of pre-adverse actions list
The amendments have also established new pre-adverse action rules. These new rules are targeted at controlling adverse actions based on pending charges. When performing a background check for pending charges, employers are required to consider:
- The city’s policy in order to overcome unnecessary exclusion and stigma toward people with pending charges
- The duties the applicant will be involved in once employed.
- The seriousness of the offense(s)
- The legitimate interest of the private employer or public agency to protect the welfare and safety of specific individuals or property
- Whether the person was 25 years old or younger at the time of occurrence of the criminal offense in question
- The bearing that the offense has on the applicant’s ability to perform the task they will be assigned.
- Any additional information forwarded by the applicant or a third party to showcase their good conduct or rehabilitation
Update your background check policies
Criminal charges aren’t the end of employment for anyone – everyone deserves a chance. Under the law, people with criminal backgrounds deserve equal treatment in the workplace if their offense isn’t detrimental to the business. Ensure you update your background check policies to be compliant with these amendments.