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New York City Fair Chance Act

Original law passed on 11/2015
Fair Chance Act
On February 16, 2016, the New York City Commission on Human Rights (“Commission”) published proposed rules (“Proposed Rules”) to the City’s Fair Chance Act (“Act”). The Act controls when New York City employers can inquire into an applicant’s or employee’s criminal background.[1] The Proposed Rules follow the Commission’s November 5, 2015, Legal Enforcement Guidance on the Act but with some notable differences, including several defined terms within the Act (described below). The Commission will hold a public hearing on March 21, 2016, and all written comments to the Proposed Rules must be submitted by that date.

Time Square, New York during daytime

The FAIR CHANCE ACT 
Makes it illegal for most employers in New York City to ask about the criminal record of job applicants before making a job offer.  This means ads, applications, and interview questions cannot include inquiries into an applicant’s criminal record.  This allows the applicant to be judged on his or her qualifications. If, after a job offer, an employer wants to revoke the offer based on the existence of criminal record, the employer must explain why using the Fair Chance Notice below, provide a copy of any background check conducted by the employer or third-party vendor, and give the applicant three business days to respond. Employers must also provide the applicant with a copy of the criminal record information that the employer relied on.  An employer that used a consumer reporting agency to conduct the background check must provide a copy of the report; an employer that relied on public records or an Internet search must provide a copy of those documents.

  • Fair Chance Notice:  The Commission has prepared this form (updated 11/05/2015) that employers may use to comply with the above-noted requirement.  The form may also be adapted to an employer’s preferred format, as long as the material substance does not change.

  • Fact Sheets on the Fair Chance Act:

The NYC Commission on Human Rights protects individuals from discrimination in employment based on the following protected classes under the Law:

  • Age

  • Race

  • Color

  • Religion/Creed

  • National Origin

  • Gender

  • Gender Identity

  • Disability

  • Pregnancy

    • NYC Human Rights Law Section 8-107(22)(b)(i) requires that employers disseminate or conspicuously post a written notice developed by the Commission on the rights of pregnant workers to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.

  • Sexual Orientation

  • Marital or Partnership Status

  • Alienage or Citizenship Status

  • Arrest or Conviction Record

  • Status as Victim of Domestic Violence, Sexual Violence, or Stalking

  • Unemployment Status

  • Caregiver Status

  • Credit History

Your organization must have four or more employees for you to be protected by the City Human Rights Law.
The Law prohibits discrimination in:

  • Hiring, firing, and work assignments

  • Salary

  • Benefits

  • Promotions

  • Performance evaluations

  • Discipline

The Law prohibits your employer from:

  • Making statements, asking questions during interviews, or circulating job announcements that suggest a preference for or prejudice against individuals based on the protected classes under the Law.

The Law also applies to employment agencies and labor organizations.

Religious Observance

  • Under the Law, employers are required to make a reasonable accommodation for the religious needs of employees and job applicants, including the observance of the Sabbath and other holy days.

  • Accommodation issues typically arise when an employee’s religious practices conflict with their assigned work schedule.

  • If you take time off for religious observance, the employer does not have to pay you for the time taken off and may require you to make up the time.

Sexual Harassment

  • Sexual harassment is a form of gender-based discrimination.

  • Unwelcome verbal, written, or physical conduct of a sexual nature constitutes unlawful sexual harassment when:

    • Granting sexual favors is used as the basis for employment decisions or as a requirement to keep your job.

    • Such conduct unreasonably interferes with job performance, or creates an intimidating, hostile, or offensive work environment.

  • The harasser can be a man or a woman.

  • Harassment can be verbal, physical, or pictorial and can include

  • Sexual comments

    • Jokes

    • Innuendo

    • Pressure for dates

    • Sexual touching

    • Sexual gestures

    • Sexual graffiti

  • The complainant does not have to be the person at whom the offensive conduct is directed, but anyone affected by the conduct.

  • If you believe you are a victim of sexual harassment, you should clearly communicate to the harasser that the conduct is unwelcome. You should also immediately inform a manager or the equal employment opportunity officer.

Retaliation

  • It is against the Law for your employer to retaliate against you because you opposed an unlawful discriminatory practice or made a charge, or if you testified, assisted, or participated in an investigation, proceeding, or hearing.

  • The Law protects you against retaliation as long as you have a reasonable good faith belief that the employer’s conduct is illegal, even if it turns out that you were mistaken.

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