What to Know About New York’s Updated Two-Step Background Check

Background checks

Ban-the-box laws have been gaining traction nationally in recent years. New York City is the latest location to adopt additional requirements that impact employers’ rules when conducting employee background checks. The New York City Fair Chance Act, or NYCFCA, went into effect on July 29, 2021, and this law provides additional employment protection for those with a criminal history.

The amendments in this law require that background checks be conducted in two steps to provide ‘complete protection’ for non-convictions and add specific Fair Credit Act factors that must be reviewed for pending criminal charges.

How the Two-Step Process Works

Under NYCFCA, criminal background checks can only be made after the employer makes a ‘conditional offer.’ A conditional offer is defined as an offer that can only be revoked based on the results of a criminal background check, the results of a medical examination, or other information the employer could not have reasonably known beforehand.

NYC’s two-step process is the result of a common work-around that employers were using with ban-the-box ordinances. Essentially, since many employers conduct all of their background checks simultaneously, they were extending conditional offers before reviewing other important information, such as work history and education.

Other elements of an employment background check can be completed before the conditional offer is made. However, this requirement means that the employer can still look at employment history, educational achievements, professional references, and other details while making the employment decision. With the two-step process, the employer can only delay the review of the criminal background record until after a conditional offer is placed.

After the conditional offer is made, the criminal history can be reviewed. This piece is the second part of the two-step process. Once the conditional offer is made, it would now be considered unlawful for the employer to revoke the conditional offer based on noncriminal information. This information could be obtained prior to extending the conditional offer.

And while this law applies to most employers, there are limited exceptions for positions that require criminal background checks, such as those in the financial, insurance, and healthcare industries. In addition to the requirement for waiting until a conditional offer is made to complete a criminal background check, NYCFCA also requires employers to be cautious of their communication. For example, employers cannot make unsolicited neutral statements about criminal background checks before a conditional offer is made. This requirement includes statements about the employer’s compliance with laws protecting applicants with criminal histories.

Defining Complete Protection

NYCFCA also ensures the amendments’ completely protect’ non-convictions. This requirement ensures employers cannot ask about, apply employment limitations, or base adverse employment actions on non-convictions, which includes:

  • Cases where no criminal charge was brought or the prosecutor declined to prosecute following an arrest.
  • Criminal charges that were resolved in favor of the individual. This provision includes
    • Those where all charges were dismissed, where the individual was acquitted on all charges.
    • The verdict was set aside, or the court vacated the judgment, and no new trial was ordered.
  • Cases that were adjourned in contemplation of dismissal, unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to that calendar for further prosecution.
  • Cases where the person was found to be a juvenile offender.
  • Convictions that have been sealed.
  • Cases that resolved in a conviction for an act defined by NY law as a violation, rather than a misdemeanor or felony, even if not sealed, including but not limited to trespass, disorderly conduct, failing to respond to an appearance ticket, loitering, harassment in the second degree, disorderly behavior and loitering for the purpose of engaging in a prostitution offense.
  • Cases that resulted in a conviction for a noncriminal offense under the laws of another state.

In addition to these protections, the NYCFCA requires employers to take into account certain things for pending charges, too, including:

  • The policy of the city.
  • The duties and responsibilities of the position.
  • The bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted or alleged in the cases of pending arrests or criminal accusations.
  • Whether the person was 25 years of age or younger at the time of the occurrence of the criminal offense.
  • The seriousness of such offense or offenses.
  • The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of the public.
  • Any additional information produced by the applicant or employee.

Complying with the requirements of the NYCFCA can become very complex. To learn more about simplifying your background check process, contact USA Fact today.

USA Fact Global Screening Services provides comprehensive background and criminal checks for employers that comply with federal and local laws. By helping you eliminate high-risk applicants through tailored solutions, USAFact enables you to create a safe and productive work environment and a foundation for future success.