These regulations expand and clarify some of the requirements of the Act which makes it illegal for most employers in New York City (including out-of-state employers who publish postings for job openings in the city) to ask about the criminal record of job applicants prior to making a job offer.
Below is list of some of the key provisions included in the final regulations:
The final regulations outline numerous acts that will be considered per se violations of the FCA.
The final regulations define a "non-conviction," and emphasize that non-convictions may not be considered in the hiring process.
Employers may not make inquiries or seek to learn about pending charges before a conditional offer of employment is made.
The final regulations contain a new section providing guidance to employers that inadvertently discover information relating to an applicant's criminal history, or when the applicants volunteer their criminal history without solicitation.
Additional steps have been added to the post-conditional offer phase before an employer may complete the review process required by both the FCA and Article 23-A of the New York State Correction Law to rescind a conditional offer of employment.
The final regulations add detail describing the duties and responsibilities of temporary help firms under the FCA.
If an employer rescinds a conditional offer of employment after receiving information regarding the applicant's criminal history, the final regulations impose a rebuttable presumption that the revocation was motivated by the applicant's criminal history, and the employer will have to carefully follow the FCA individualized assessment and notice process.
The Commission has instituted an early resolution program, enabling employers charged with per se violations of the FCA to admit liability, accept a penalty, and enter an agreement to comply with the FCA in lieu of litigating complaints of unlawful conduct.
Employers and employment agencies that employ persons in New York City, particularly those with a recruiting function that covers multiple states and municipalities, should consult with experienced employment counsel to assess how their current hiring practices are affected by the final regulations.
For a more detailed analysis of these key provisions of the FCA's final regulations, readers can refer to the following release from the law firm Littler Mendelson, available here.
Source: Littler Mendelson, 7/31/2017
Posted: August 2, 2017