Lawyer Monthly - December 2021 Edition

54 WWW.LAWYER-MONTHLY.COM | DEC 2021 EXPERT INSIGHT If an employer has concerns after receiving the results of the background check, the employer must ask the applicant for evidence of good conduct or rehabilitation and do a Fair Chance Analysis of the applicant’s record. An employer may take away a job offer for one of two reasons: (1) there is a direct relationship between the alleged or convicted conduct and the job, or (2) hiring the applicant would involve an unreasonable risk to people or property. The employer must consider these Fair Chance Factors when determining if there is a direct relationship or unreasonable risk: • New York encourages employment for people with criminal records. • The specific job duties and the need for legal protections for individuals with felony or misdemeanour convictions, there are various statutes that are designed to combat discrimination based on conviction. Therefore, even without a Certificate of Relief from Civil Disabilities or Sealing of a Criminal Conviction, employers are not allowed to discriminate against an individual with a criminal conviction. Below are some laws designed to protect one from discrimination based on a criminal conviction. Fair Chance Act 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. New York City Human Rights Law §8-107(10) Employers and temporary employment agencies cannot mention anything about criminal history or background checks when they advertise jobs. Job ads that say, for example, “background check required” or “no felonies” are illegal. Job applications also cannot request information about an applicant’s criminal record or ask the applicant to authorise a background check. Similarly, inquiry into the ability to pass a background check or information regarding any convictions are also prohibited during the interview process. An employer must extend a conditional offer prior to any inquiry into the applicant’s criminal history. Even if an applicant has a criminal record, they are still protected from certain types of questions about that record and the employer cannot just decide not to hire them based on that record. Employers may never ask about: • Non-convictions (for example, arrests that were not prosecuted; acquittals; dismissed charges; expunged cases; and vacated convictions); • Cases adjourned in contemplation of dismissal; • Youthful offender cases; • Violations (for example, disorderly conduct); • Non-criminal offences (this does not include driving infractions); • Sealed cases. Employers are permitted to consider: • Open or pending cases • Misdemeanour convictions • Felony convictions • Driving infractions Before taking away a job offer, the employer must give the applicant an opportunity to respond.