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NYC’s Fair Chance Act: Latest on Article 23-A

Date Published: December 10, 2015 | Last Updated:September 15, 2023 | By Tracy Vrchota
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New York City’s Ban the Box legislation the “Fair Chance Act,” which went into effect this past October, prohibits employers from inquiring about an applicant’s arrest or conviction record until after a conditional offer of employment is extended. One of the requirements of this act, the Article 23-A Evaluation Form, must be provided to the applicant by the employer.

The NYC Commission of Human Rights also recently published Legal Enforcement Guidance that elaborates key elements of the legislation, including details relating to:

√ The criminal background check process for employers, including, but not limited to:

  • Background checks and inquiries into criminal history must be done only after a conditional offer;
  • Solicitations, advertisements, and publications for employment cannot mention criminal history;
  • Once an employer extends a conditional offer and learns of an applicant’s criminal record, it must solicit the information necessary to properly consider each Article 23-A factor, including the applicant’s evidence of rehabilitation; and
  • Other requirements as to what should occur before and after the conditional offer.

√   The Fair Chance Process, which requires:

  • Disclosing to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history;
  • Sharing with the applicant a written copy of its Article 23-A analysis on the Article 23-A Evaluation Form; and
  • Allowing the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.

√   Violations and enforcement of the Act, stating “the Commission will vigorously enforce the FCA”

√  Other areas where the Act is applicable (e.g. temporary help firms), and areas that call for exemption

√   Best practices for employers, such as the use of exemption logs when necessary.

You can read more about the Fair Chance Act, and other Ban the Box laws, by visiting Accurate Background’s Legislative Updates.


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