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

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