New York City Commission on Human Rights Notice of Adoption of

New York City Commission on Human Rights

Notice of Adoption of Rule

NOTICE IS HEREBY GIVEN, pursuant to the authority vested in the Commission on Human Rights by

section 905(e)(9) of the New York City Charter and in accordance with the requirements of Section 1043

of the Charter, that the New York City Commission on Human Rights has amended its rules to establish

certain definitions and procedures applying Local Law No. 63 of 2015, the Fair Chance Act (“the FCA”)

which amended the Human Rights Law’s provisions regarding unlawful discrimination on the basis of

criminal history against job applicants and employees, and applicants for licenses, registrations, and

permits.

The required public hearing was held on March 21, 2016.

Statement of Basis and Purpose of Final Rule

The New York City Commission on Human Rights (“the Commission”) has amended its rules to establish

certain definitions and procedures applying Local Law No. 63 of 2015, the Fair Chance Act, which

amended the Human Rights Law’s provisions regarding unlawful discrimination on the basis of criminal

history against job applicants and employees, and applicants for licenses, registrations, and permits.

These rules amend title 47 of the Rules of the City of New York by amending section 2-01 to define terms

used in the Human Rights Law and update the definition of “domestic partners” to reflect the definition

contained in the Administrative Code. The rules also add a new section, section 2-04, to specify

chargeable violations under the Human Rights Law as amended by the FCA; define terms and requirements

in furtherance of the intent of the FCA, establish guidelines and procedures for enforcement; outline

obligations of employers and those evaluating individuals for licenses, registrations, permits and credit; and

clarify when and under what circumstances an employer can withdraw a conditional offer or take an

adverse employment action against an applicant or employee based on their criminal history. The rules

also create a discretionary mechanism for the Commission to resolve Commission-initiated charges of

certain per se violations under the FCA by offering eligible respondents an option for expedited resolution.

This process, called Early Resolution, will allow a respondent to bypass a full investigation and a hearing,

by admitting liability and complying with a penalty. The monetary fine associated with the penalty is

based on the penalty schedule set forth in the rules. By assessing penalties based upon employer size, the

penalty schedule recognizes the impact of the discriminatory action on the public and is designed to ensure

that the penalty will incentivize compliance with this program, deter future violations, and educate

employers about their obligations under the law. The monetary fines are proportional to the civil penalties

awarded in cases of per se violations that come before the Commission.

The final rule:

• Amends title 47 of the Rules of the City of New York to establish definitions for

“Applicant,” “Adverse Employment Action,” “Article 23-A Analysis,” “Article 23-A

Factors,” “Business Day,” “Conditional Offer of Employment,” “Conviction History,”

“Criminal Background Check,” “Criminal History,” “Direct Relationship,” “Domestic

Partners,” “Fair Chance Process,” “Human Rights Law,” “Inquiry,” “Licensing Agency,”

“Non-Convictions,” “Per Se Violation,” “Statement,” “Temporary Help Firms,” and

“Terms and Conditions.”

• Establishes per se violations, as defined by these rules, of the new provisions added to the

Human Rights Law by the FCA.

• Clarifies the types of questions and statements relating to criminal history that are

prohibited by the FCA.

• Explains the meaning of a conditional offer and establishes the limited circumstances

under which an employer can revoke a conditional offer.

• Explains what an employer should do if they inadvertently learn about an applicant’s

criminal history prior to making a conditional offer.

• Clarifies the procedure that an employer must follow upon learning of an applicant’s or

employee’s criminal history and what steps must be taken before revoking a conditional

offer or taking an adverse employment action.

• Establishes clear guidelines that employers must follow when considering whether and

how applicants’ and employees’ criminal convictions relate to the duties of a prospective

or current job or would pose an unreasonable risk to the property or the safety or welfare

of specific individuals or the general public.

• Establishes what information an employer must provide to an applicant if a determination

is made to revoke a conditional offer based on a conviction, and clarifies how an

employer must evaluate an applicant’s request for more time.

• Requires an employer to consider any documentation that the applicant presents to

support their assertion that the information on the background check contains an error.

• Clarifies exemptions to the FCA.

• Creates a discretionary mechanism for the Commission to respond to per se violations of

the FCA by allowing the Commission’s Law Enforcement Bureau (“LEB”) to send

employers or licensing agencies an Early Resolution Notice.

• Clarifies that employers may not request information or inquire about the non-

convictions of applicants or employees and may not deny or take any adverse

employment action against applicants or employees based on non-convictions.

• Updates the rule’s definition of “domestic partners” to reflect the definition contained in

the Administrative Code.

New material is underlined.

[Deleted material is in brackets.]

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this

department, unless otherwise specified or unless the context clearly indicates otherwise.

Section 1. Section 2-01 of Title 47 of the Official Compilation of the Rules of the City of New York is

amended to read as follows:

§ 2-01 Definitions.

[The definitions in this section shall be used by the New York City Commission on Human

Rights in determining whether an institution, club, or place of accommodation is “distinctly

private” as that term is used in the New York City Human Rights Law, Administrative Code §8-

101 et seq.]

For purposes of this chapter,

Adverse employment action. “Adverse employment action” refers to any action that negatively

affects the terms and conditions of employment.

Applicant. “Applicant” refers to persons seeking initial employment, and current employees who

are seeking or being considered for promotions or transfers.

Article 23-A analysis. “Article 23-A analysis” refers to the process required under subdivisions

9, 10, 11, and 11-a of section 8-107 of the Administrative Code to comply with Article 23-A of

the New York Correction Law.

Article 23-A factors. “Article 23-A factors” refers to the factors that employers must consider

concerning applicants’ and employees’ conviction histories under section 753 of Article 23-A of

the New York Correction Law.

Business day. “Business day” means any day except for Saturdays, Sundays, and all legal

holidays of the City of New York.

Commission. “Commission” means the New York City Commission on Human Rights.

Conditional offer of employment. “Conditional offer of employment,” as used in section 8-

107(11-a) of the Administrative Code and section 2-04 of this title for purposes of establishing

when an applicant’s criminal history can be considered by an employer, refers to an offer of

employment, promotion or transfer. A conditional offer of employment can only be revoked

based on one of the following:

1. The results of a criminal background check, and only after the “Fair Chance Process,”

as defined in this section, has been followed.

2. The results of a medical exam as permitted by the Americans with Disabilities Act of

1990, as amended, 42 U.S.C. §12101 et seq.

3. Other information the employer could not have reasonably known before making the

conditional offer if, based on the information, the employer would not have made the

offer and the employer can show the information is material.

For temporary help firms, a conditional offer is the offer to place an applicant in the firm’s

labor pool, which is the group of individuals from which the firm selects candidates to send

for job opportunities.

Conviction history. “Conviction history” refers to records of an individual’s conviction of a

felony, misdemeanor, or unsealed violation as defined by New York law or federal law, or the

law of the state in which the individual was convicted.

Criminal background check. “Criminal background check” refers to when an employer,

employment agency or agent thereof orally or in writing:

1. Asks a person whether or not they have a criminal record; or

2. Searches for publicly available records, including through a third party, such as a

consumer reporting agency, the Internet, or private databases, for a person’s criminal

history.

Criminal history. “Criminal history” refers to records of an individual’s convictions, unsealed

violations, non-convictions, and/or currently pending criminal case(s).

Direct relationship. “Direct relationship” refers to a finding that the nature of the criminal

conduct underlying a conviction has a direct bearing on the fitness or ability of an applicant or

employee to perform one or more of the duties or responsibilities necessarily related to the

license, registration, permit, employment opportunity, or terms and conditions of employment in

question.

[Domestic partner. The term "domestic partner" means a person who has registered a domestic

partnership in accordance with applicable law with the City Clerk, or has registered such a

partnership with the former City Department of Personnel pursuant to Executive Order 123

(dated August 7, 1989) during the period August 7, 1989 through January 7, 1993. (The records

of domestic partnerships registered at the Department of Personnel are to be transferred to the

City Clerk.)] Domestic partners. “Domestic partners” means persons who have a registered

domestic partnership, which shall include any partnership registered pursuant to chapter 2 of title

3 of the Administrative Code, any partnership registered in accordance with executive order

number 123, dated August 7, 1989, and any partnership registered in accordance with executive

order number 48, dated January 7, 1993, and persons who are members of a marriage that is not

recognized by the state of New York, a domestic partnership, or a civil union, lawfully entered

into in another jurisdiction.

Employer. “Employer” refers to an employer as defined by section 8-102(5) of the

Administrative Code.

Fair Chance Process. “Fair Chance Process” refers to the post-conditional offer process

mandated by section 8-107(11-a) of the Administrative Code when employers elect to withdraw

a conditional offer of employment or deny a promotion or transfer based on an applicant’s

conviction history.

Human Rights Law. “Human Rights Law” refers to Title 8 of the Administrative Code.

Inquiry. “Inquiry,” when used in connection with criminal history, refers to any oral or written

question asked for the purpose of obtaining a person’s criminal history, including without

limitation, questions in a job interview about an applicant’s criminal history, and any search for a

person’s criminal history, including through the services of a third party, such as a consumer

reporting agency.

Licensing agency. “Licensing agency” refers to any agency or employee thereof that is

authorized to issue any certificate, license, registration, permit or grant of permission required by

the law of this state, its political subdivisions or instrumentalities as a condition for the lawful

practice of any occupation, employment, trade, vocation, business or profession.

Members. “Members” [shall mean] means individuals belonging to any class of membership

offered by the institution, club, or place of accommodation, including, but not limited to, full

membership, resident membership, nonresident membership, temporary membership, family

membership, honorary membership, associate membership, membership limited to use of dining

or athletic facilities, and membership of members' minor children or spouses or domestic

partners.

Non-conviction. “Non-conviction” means any arrest or criminal accusation, not currently

pending, that was concluded in one of the following ways:

1. Termination in favor of the individual, as defined by New York Criminal Procedure

Law (“CPL”) section 160.50, even if not sealed;

2. Adjudication as a youthful offender, as defined by CPL section 720.35, even if not

sealed;

3. Conviction of a non-criminal offense that has been sealed under CPL section 160.55;

4. Convictions that have been sealed under CPL section 160.58.

“Non-conviction” includes a disposition of a criminal matter under federal law or the law of

another state that results in a status comparable to a “non-conviction” under New York law

as defined in this section.

Payment directly from a nonmember. “Payment directly from a nonmember” [shall mean] means

payment made to an institution, club or place of accommodation by a nonmember for expenses

incurred by a member or nonmember for dues, fees, use of space, facilities, services, meals or

beverages.

Payment for the furtherance of trade or business. “Payment for the furtherance of trade or

business” [shall mean] means payment made by or on behalf of a trade or business organization,

payment made by an individual from an account which the individual uses primarily for trade or

business purposes, payment made by an individual who is reimbursed for the payment by the

individual's employer or by a trade or business organization, or other payment made in

connection with an individual's trade or business, including entertaining clients or business

associates, holding meetings or other business- related events.

Payment indirectly from a nonmember. “Payment indirectly from a nonmember” [shall mean]

means payment made to a member or nonmember by another nonmember as reimbursement for

payment made to an institution, club or place of accommodation for expenses incurred for dues,

fees, use of space, facilities, meals or beverages.

Payment on behalf of a nonmember. “Payment on behalf of a nonmember” [shall mean] means

payment by a member or nonmember for expenses incurred for dues, fees, use of space,

facilities, services, meals or beverages by or for a nonmember.

Per se violation. “Per se violation” refers to an action or inaction that, standing alone, without

reference to additional facts, constitutes a violation of title 8 of the Administrative Code,

regardless of whether any adverse employment action was taken or any actual injury was

incurred.

Regular meal service. “Regular meal service” [shall mean] means the provision, either directly

or under a contract with another person, of breakfast, lunch, or dinner on three or more days per

week during two or more weeks per month during six or more months per year.

Regularly receives payment. An institution, club or place of [“]accommodation “regularly

receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or

indirectly from or on behalf of nonmembers for the furtherance of trade or business” if it receives

as many such payments during the course of a year as the number of weeks any part of which the

institution, club or place of accommodation is available for use by members or non-members per

year.

Statement. “Statement,” when used in connection with criminal history, refers to any

communications made, orally or in writing, to a person for the purpose of obtaining criminal

history, including, without limitation, stating that a background check is required for a position.

Temporary help firms. “Temporary help firms” are businesses that recruit, hire, and assign their

own employees to perform work or services for other organizations, to support or supplement the

other organization’s workforce, or to provide assistance in special work situations such as,

without limitation, employee absences, skill shortages, seasonal workloads, or special

assignments or projects.

Terms and conditions. “Terms and conditions” means conditions of employment, including but

not limited to hiring, termination, transfers, promotions, privileges, compensation, benefits,

professional development and training opportunities, and job duties.

§ 2. Chapter 2 of title 47 of the Official Compilation of the Rules of the City of New York are

amended by adding a new section 2-04 to read as follows:

§ 2-04 Prohibitions on Discrimination Based on Criminal History.

Sections 2-04(a) through 2-04(g) relate to prohibitions on discrimination in employment only.

Section 2-04(h) relates to prohibitions on discrimination in licensing only. Section 2-04(i)

relates to enforcement of violations of the Human Rights Law under this section in employment

and licensing.

(a) Per Se Violations. The Commission has determined that the following are per se violations of

sections 8-107(10), (11) or (11-a) of the Human Rights Law (regardless of whether any

adverse employment action is taken against an individual applicant or employee), unless an

exemption listed under subdivision (g) of this section applies:

(1) Declaring, printing, or circulating, or causing the declaration, printing, or circulation of,

any solicitation, advertisement, policy or publication that expresses, directly or indirectly,

orally or in writing, any limitation or specification in employment regarding criminal

history. This includes, but is not limited to, advertisements and employment applications

containing phrases such as: “no felonies,” “background check required,” and “must have

clean record.”

(2) Using applications for employment that require applicants to either grant employers

permission to run a background check or provide information regarding criminal history

prior to a conditional offer.

(3) Making any statement or inquiry relating to the applicant’s pending arrest or criminal

conviction before a conditional offer of employment is extended.

(4) Using within the City a standard form, such as a boilerplate job application, intended to

be used across multiple jurisdictions, that requests or refers to criminal history.

Disclaimers or other language indicating that applicants should not answer specific

questions if applying for a position that is subject to the Human Rights Law do not shield

an employer from liability.

(5) Failing to comply with requirements of section 8-107(11-a) of the Human Rights Law,

when they are applicable: (1) to provide the applicant a written copy of any inquiry an

employer conducted into the applicant’s criminal history; (2) to share with the applicant a

written copy of the employer’s Article 23-A analysis; or (3) to hold the prospective

position open for at least three business days from the date of an applicant’s receipt of

both the inquiry and analysis.

(6) Requiring applicants or employees to disclose an arrest that, at the time disclosure is

required, has resulted in a non-conviction as defined in section 2-01 of this chapter.

(b) Criminal Background Check Process. An employer, employment agency, or agent thereof

may not inquire about an applicant’s criminal history or request permission to run a criminal

background check until after the employer, employment agency, or agent thereof makes the

applicant a conditional offer. At no point may an employer, employment agency, or agent

thereof seek or consider information pertaining to a non-conviction.

(1) Employers, employment agencies, or agents thereof may not engage in any of the

following actions prior to making a conditional offer to an applicant, unless otherwise

exempt pursuant to § 2-04(f) of this chapter:

(i) Seeking to discover, obtain, or consider the criminal history of an applicant before a

conditional offer of employment is made.

(ii) Expressing any limitation or specifications based on criminal history in job

advertisements. This includes, but is not limited to, any language that states or implies

“no felonies,” “background check required,” or “clean records only.” Solicitations,

advertisements, and publications encompass a broad variety of items, including, but

not limited to, employment applications, fliers, hand-outs, online job postings, and

materials distributed at employment fairs and by temporary help firms and job

readiness programs.

(iii) Using an application that contains a question about an applicant’s criminal history or

pending criminal case or requests authorization to perform a background check.

(iv) Making any inquiry or statement related to an applicant’s criminal history, whether

written or oral, during a job interview.

(v) Asserting, whether orally or in writing, that individuals with a criminal history, or

individuals with certain convictions, will not be hired or considered.

(vi) Conducting investigations into an applicant’s criminal history, including the use of

publicly available records or the Internet for the purpose of learning about the

applicant’s criminal history, whether such investigations are conducted by an

employer or for an employer by a third party.

(vii) Disqualifying an applicant for refusing to respond to any prohibited inquiry or

statement about criminal history.

(viii) In connection with an applicant, searching for terms such as, “arrest,” “mugshot,”

“warrant,” “criminal,” “conviction,” “jail,” or “prison” or searching websites that

purport to provide information regarding arrests, warrants, convictions or

incarceration information for the purpose of obtaining criminal history.

Offer. Inadvertent discovery by an employer, employment agency, or agent thereof or

unsolicited disclosure by an applicant of criminal history prior to a conditional offer of

employment does not automatically create employer liability. Liability is created when an

employer, employment agency, or agent thereof uses the discovery or disclosure to further

explore an applicant’s criminal history before having made a conditional offer or uses the

information in determining whether to make a conditional offer.

(d) Information Regarding Conviction History Obtained After a Conditional Offer. After an

employer, employment agency, or agent thereof extends a conditional offer to an applicant,

an employer, employment agency, or agent thereof may make inquiries into or statements

about the applicant’s conviction history. An employer, employment agency, or agent thereof

may (1) ask, either orally or in writing, whether an applicant has a criminal conviction

history; (2) run a background check or, after receiving the applicant’s permission and

providing notice, use a consumer reporting agency to do so; and (3) once an employer,

employment agency, or agent thereof knows about an applicant’s conviction history, ask

them about the circumstances that led to the conviction and gather information relevant to the

Article 23-A factors. Upon receipt of an applicant’s conviction history, an employer,

employment agency, or agent thereof may elect to hire the individual. If the employer,

employment agency, or agent thereof does not wish to withdraw the conditional offer, the

employer, employment agency, or agent thereof does not need to engage in the Article 23-A

analysis.

(e) Withdrawing a Conditional Offer of Employment or Taking an Adverse Employment Action.

Should an employer, employment agency, or agent thereof wish to withdraw its conditional

offer of employment or take an adverse employment action based on an applicant’s or

employee’s conviction history, the employer, employment agency, or agent thereof must (1)

engage in an Article 23-A analysis, and (2) follow the Fair Chance Process. Employers,

employment agencies, or agents thereof must affirmatively request information concerning

clarification, rehabilitation, or good conduct while engaging in the Article 23-A analysis.

(1) Article 23-A analysis

(i) An employer, employment agency, or agent thereof must consider the following

factors in evaluating an applicant or employee under the Article 23-A analysis:

(A) That New York public policy encourages the licensure and employment of people

with criminal records;

(B) The specific duties and responsibilities necessarily related to the prospective job;

fitness or ability to perform one or more of the job’s duties or responsibilities;

(D) The time that has elapsed since the occurrence of the criminal offense that led to

the applicant or employee’s criminal conviction, not the time since arrest or

conviction;

(E) The age of the applicant or employee when the criminal offense that led to their

conviction occurred;

(F) The seriousness of the applicant’s or employee’s conviction;

(G) Any information produced by the applicant or employee, or produced on the

applicant’s or employee’s behalf, regarding their rehabilitation and good conduct;

(H) The legitimate interest of the employer in protecting property, and the safety and

welfare of specific individuals or the general public.

(ii) When considering the factors outlined above, a presumption of rehabilitation exists

when an applicant or employee produces a certificate of relief from disabilities or a

certificate of good conduct.

(iii) An employer, employment agency, or agent thereof may not change the duties and

responsibilities of a position because it learned of an applicant’s or employee’s

conviction history, except as provided in subdivision (e)(2)(v) of this section.

(iv) After evaluating the factors in subdivision(e)(1)(i) of this section, an employer,

employment agency, or agent thereof must then determine whether (1) there is a

“direct relationship” between the applicant’s or employee’s conviction history and the

prospective or current job, or (2) employing or continuing to employ the applicant

would involve an unreasonable risk to property or to the safety or welfare of specific

individuals or the general public.

(A) To claim the “direct relationship exception,” an employer, employment agency, or

agent thereof must first draw some connection between the nature of the conduct

that led to the conviction(s) and the position. If a direct relationship exists, the

employer must evaluate the Article 23-A factors to determine whether the

concerns presented by the relationship have been mitigated.

(B) To claim the “unreasonable risk exception,” an employer, employment agency, or

agent thereof must consider and apply the Article 23-A factors to determine if an

unreasonable risk exists.

(v) If an employer, employment agency, or agent thereof, after weighing the required

factors, cannot determine that either the direct relationship exemption or the

unreasonable risk exemption applies, then the employer, employment agency, or

agent thereof may not revoke the conditional offer or take any adverse employment

action.

(2) The Fair Chance Process: If, after an employer, employment agency, or agent thereof

determines that either the direct relationship or unreasonable risk exemption applies, the

employer, employment agency, or agent thereof wishes to revoke the conditional offer or

take an adverse employment action, the employer, employment agency, or agent thereof

must first (1) provide a written copy of any inquiry made to collect information about

criminal history to the applicant, (2) provide a written copy of the Article 23-A analysis

to the applicant, (3) inform the applicant that they will be given a reasonable time to

respond to the employer’s concerns, and (4) consider any additional information provided

by the applicant during this period.

(i) Providing a written copy of the inquiry.

The employer, employment agency, or agent thereof must provide a complete and

accurate copy of each and every piece of information relied on to determine that

the applicant has a conviction history. This includes, but is not limited to, copies

of consumer reporting agency reports, print outs from the Internet, records

available publicly, and written summaries of any oral conversations, specifying if

the oral information relied upon came from the applicant.

(ii) Providing a written copy of the Article 23-A analysis performed by the employer,

employment agency, or agent thereof.

(A) Employers, employment agencies, or agents thereof who seek to revoke an

applicant’s conditional offer or take an adverse employment action on the basis of

an applicant’s criminal history must provide the applicant with the Fair Chance

Notice below, which is available on the Commission’s website, or a comparable

notice.

(B) So long as the material substance does not change, the notice may be adapted to a

format preferred by the employer, employment agency, or agent thereof to

account for the specific circumstances involving the applicant and the adverse

employment action or denial of employment. A Fair Chance Notice must (1)

include specific facts that were considered pursuant to the Article 23-A analysis

and the outcome, (2) articulate the employer’s, employment agency’s, or agent’s

concerns and basis for determining that there is a direct relationship or an

unreasonable risk, and (3) inform the applicant of their rights upon receipt of the

notice, including how they can respond to the notice and the time frame within

which they must respond.

(iii) The employer, employment agency, or agent thereof must allow the applicant a

reasonable time to respond to the employer’s concerns.

(A) An employer, employment agency, or agent thereof must consider the following

information when determining how much time is reasonable: (1) what additional

information the applicant is purporting to gather and whether that additional

information would change the outcome of the Article 23-A analysis; (2) why the

applicant needs more time to gather the information; (3) how quickly the

employer needs to fill the position; and (4) any other relevant information. A

reasonable time shall be no less than 3 business days.

(B) During this time, an employer, employment agency, or agent thereof may not

permanently place another person in the applicant’s prospective or current

position.

provided, the employer, employment agency or agent thereof must consider in

applying the Article 23-A factors.

(D) The time period begins when the applicant receives both the Fair Chance Notice

and a written copy of the inquiry.

(iv) Response of employer, employment agency, or agent thereof to additional

information.

(A) If, within the reasonable time allowed by the employer as required by this

subdivision, the applicant provides additional information related to the concerns

identified by the employer, the employer, employment agency, or agent thereof

must consider whether the additional information changes the Article 23-A

analysis.

(B) If the employer, employment agency, or agent thereof reviews the additional

information and makes a determination not to hire the applicant or take an adverse

employment action, the employer, employment agency, or agent thereof must

relay that decision to the applicant in writing.

(v) If an employer, employment agency, or agent thereof determines after conclusion of

the Fair Chance Process to revoke the conditional offer of employment, the employer,

employment agency, or agent thereof may consider whether any alternate positions

are vacant and available to the applicant that would alleviate the concerns identified

by the Article 23-A analysis, provided that failure to consider or provide an offer to

fill an alternative position shall not be considered a violation of this section.

(3) Errors, Discrepancies, and Misrepresentations

(i) If an applicant realizes that there is an error on a criminal background check, they

must inform the employer, employment agency, or agent thereof of the error and

request the necessary time to provide supporting documentation.

(A) If the applicant demonstrates within the reasonable time allowed by the employer

pursuant to this subdivision that the information is incorrect and the applicant has

no conviction history, the employer, employment agency, or agent thereof may

not withdraw the conditional offer or take any adverse employment action on the

basis of the applicant’s criminal history.

(B) If the applicant demonstrates that the criminal history resulted in a non-

conviction, the employer, employment agency, or agent thereof may not withdraw

the conditional offer or take any adverse employment action on the basis of the

applicant’s criminal history.

reflected in the background check, the employer, employment agency, or agent

thereof must conduct the Article 23-A analysis based on the correct and current

conviction history and must follow the Fair Chance Process.

(ii) If a background check reveals that an applicant has intentionally failed to answer a

legitimate question about their conviction history, the employer, employment agency,

or agent thereof may revoke the conditional offer or take an adverse employment

action.

(f) Temporary Help Firms.

(1) A temporary help firm is bound by the same pre-conditional offer requirements as other

employers and must follow the Fair Chance Process if it wishes to withdraw a conditional

offer based on the conviction history of an applicant. A “conditional offer” from a

temporary help firm is an offer to place an applicant in the firm’s labor pool, from which

the applicant may be sent on job assignments to the firm’s clients.

(2) In order to evaluate job duties relevant to the conviction history under the Article 23-A

analysis, a temporary help firm may only consider the minimum skill requirements and

basic qualifications necessary for placement in its applicant pool.

(3) Any employer who utilizes a temporary help firm to find applicants for employment must

follow the Fair Chance Process and may not make any statements or inquiries about an

applicant’s criminal history until after the applicant has been assigned to the employer by

the temporary help firm.

(4) A temporary help firm may not aid or abet an employer’s discriminatory hiring practices.

A temporary help firm may not determine which candidates to refer to an employer based

on an employer’s preference not to employ persons with a specific type of conviction or

criminal history generally. A temporary help firm may not provide the applicant’s

criminal history to prospective employers until after the employer has made a conditional

offer to the applicant.

(g) Exemptions.

(1) The Fair Chance Process mandated by § 8-107(11-a) of the Human Rights Law shall not

apply to any actions taken by an employer or agent thereof with regard to an applicant for

employment:

(i) In a position where federal, state, or local law requires criminal background checks.

or bars employment based on criminal history.

(A) This exemption does not apply to an employer authorized, but not required, to

check for criminal backgrounds.

(B) This exemption does not exempt an employer from the requirements of

§ 8-107(10) of the Human Rights Law.

(ii) In a position where federal, state, or local law bars employment of individuals based

on criminal history.

(A) This exemption applies to particular positions where the federal, state or local law

bars employment with respect to a particular type of conviction. In such cases, an

employer or agent thereof may: (1) notify applicants of the specific mandatory bar

to employment prior to a conditional offer; (2) inquire at any time during the

application process whether an applicant has been convicted of the specific crime

that is subject to the mandatory bar to employment; and (3) disqualify any

applicant or employee with such criminal history without following the Fair

Chance Process.

(B) This exemption does not apply where the employer’s decision about whether to

hire or promote an applicant based on their criminal history is discretionary. The

fact that a position requires licensure or approval by a government agency does

not by itself exempt the employer, employment agency, or agent thereof from the

Fair Chance Process. When hiring for such a position, if the exemption in

subdivision g(1)(i) or g(1)(ii)(A) does not apply, before making a conditional

offer the employer may only ask whether the applicant has the necessary license

or approval or whether they can obtain it within a reasonable period of time.

(iii) In positions regulated by self-regulatory organizations as defined in section 3(a)(26)

of the Securities Exchange Act of 1934, as amended, 15 U.S.C. § 78a, where the rules

or regulations promulgated by such organizations require criminal background checks

or bar employment based on criminal history. This exemption includes positions for

which applicants are not required to be registered with a self-regulatory organization,

when the applicant nevertheless either chooses to become registered while in the

position or elects to maintain their prior registration.

(iv) In positions as police and peace officers, working for law enforcement agencies, and

for other exempted city agencies, specifically:

(A) As a police officer or peace officer, as those terms are defined in subdivisions

thirty-three and thirty-four of section 1.20 of the criminal procedure law;

(B) At a New York City law enforcement agency, including but not limited to the

City Police Department, Fire Department, Department of Correction, Department

of Investigation, Department of Probation, the Division of Youth and Family

Services, the Business Integrity Commission, and the District Attorneys’ offices

in each borough; or

Commissioner’s calendar item and listed on the website of the Department of

Citywide Administrative Services as exempt because the Commissioner of

Citywide Administrative Services has determined that the position involves law

enforcement; is susceptible to bribery, or corruption; or entails the provision of

services to or the safeguarding of people who, because of age, disability, infirmity

or other condition, are vulnerable to abuse.

Once the Department of Citywide Administrative Services exempts a position, an

applicant may be asked about their conviction history at any time; however,

applicants who are denied employment because of their conviction history must

receive a written copy of the Article 23-A analysis.

(2) Standard of Proof: It shall be an affirmative defense that any action taken by an employer

or agent thereof is permissible pursuant to paragraph 1 of this subdivision.

(h) Licenses, Registrations, and Permits.

(1) Licensing agencies may not deny any license, registration or permit to any applicant, or

act adversely upon any holder of a license, registration or permit, based on criminal

history in violation of Article 23-A of the New York Corrections Law.

(2) Prior to denying or taking any adverse action against an individual applying for a license,

registration or permit based on their conviction history, the licensing agency must

evaluate the candidate using the Article 23-A analysis.

(3) A finding that an applicant lacks “good moral character” cannot be based on an

individual’s criminal history when such an action is in violation of Article 23-A of the

Correction Law.

(4) Under no circumstances may an individual applying for a license, registration or permit,

be questioned about non-convictions, nor can any adverse actions or denials be made

based on non-convictions.

(5) Exemption as to licenses, registrations, and permits:

(i) Paragraphs (1) through (4) of this subdivision do not apply to licensing activities in

relation to the regulation of explosives, pistols, handguns, rifles, shotguns, or other

firearms and deadly weapons.

(ii) Any agency authorized to issue a license, registration, or permit may consider age,

disability, or criminal history as a criterion for determining eligibility or continuing

fitness for a license, registration or permit, when specifically required to do so

pursuant to federal, state, or local law.

(i) Enforcement and Penalties.

(1) There is a rebuttable presumption that an employer, employment agency, or agent thereof

was motivated by an applicant’s criminal history if it revokes a conditional offer of

employment without following the Fair Chance Process. This presumption can be

rebutted by demonstrating that the conditional offer was revoked based on: (1) the results

of a medical exam in situations in which such exams are permitted by the American with

Disabilities Act; (2) information the employer, employment agency, or agent thereof

could not have reasonably known before the conditional offer if, based on the

information, the employer, employment agency, or agent thereof would not have made

the offer and the employer, employment agency, or agent thereof can show that the

information is material; or (3) evidence that the employer, employment agency, or agent

thereof did not have knowledge of the applicant’s criminal history before revoking the

conditional offer.

(2) Early Resolution for Commission-initiated complaints regarding certain per se violations.

(i) Early Resolution is an expedited settlement option that is available to respondents in

certain circumstances that allows them to immediately admit liability and comply

with a penalty in lieu of litigating the matter.

(ii) Except as provided in subparagraph (iii) below, the Law Enforcement Bureau will

offer Early Resolution for Commission-initiated complaints of per se violations under

the following circumstances: (1) the respondent has committed a per se violation as

defined in section 2-04(a); (2) there are no other pending or current allegations

against the respondent concerning violations of the Human Rights Law; (3) the

respondent has 50 or fewer employees at the time of the alleged violation; and (4) the

respondent has had no more than one violation of the Human Rights Law in the past

three years.

(iii) Notwithstanding any other provision of this section, the Commission retains

discretion to proceed with a full investigation and a referral to the Office of

Administrative Trials and Hearings when the offer of Early Resolution will not serve

the public interest. Factors that indicate that an Early Resolution is not in the public

interest include, without limitation: (1) the respondent has had prior contact with the

Commission from which an inference of willfulness regarding the violation may be

inferred; (2) the respondent works with vulnerable communities; or (3) the

Commission has reason to believe discrimination is rampant in respondent’s industry.

For purposes of this section, a violation of any provision of the Human Rights Law

that resulted in an admission pursuant to Early Resolution, conciliation or other

settlement agreement, or a finding of liability issued after a hearing or trial pursuant

to a complaint filed with or by the Commission shall be considered a past violation.

(iv) Early Resolution: Notice, Penalties and Procedure

(A) A respondent shall be served with a copy of the Early Resolution Notice

simultaneously with service of the complaint.

(B) The Notice shall state that the respondent has 90 days to answer a complaint in

which the respondent has been offered the option of Early Resolution, and that

there will be no extensions of time granted.

and agree to the affirmative relief and penalty, or (2) file an answer to the

complaint in compliance with section 1-14 of this title, except that the time to

respond shall be 90 days instead of 30.

(D) An Early Resolution penalty shall include: (1) a mandatory and free training

provided by the Commission; (2) a requirement that the respondent post a notice

of rights under the Human Rights Law; and (3) a monetary fine as determined by

the penalty schedule outlined in paragraph (E) of this subdivision. The Notice

shall inform the respondent that a private individual aggrieved by the same

violation may also file an independent complaint with the Commission or may

bring a court action.

(E) Fines will be assessed according to the following penalty schedule:

Employer Size (at the time

of the violation)

Violation

Violation (within 3

years of the resolution date

of the first violation)

4-9 employees

$500.00

$1000.00

10-20 employees

$1000.00

$5000.00

21-50 employees

$3500.00

$10,000.00

** Distinct and contemporaneous violations will be counted separately for the purpose

of calculating a monetary penalty. For example, an employer who has between four

and nine employees and is using a discriminatory advertisement in violation of section

2-04(a)(1) and an application that references criminal history in violation of section 2-

04(a)(2) will be charged with two separate violations of $500.00 each. However,

multiple violations of one section, for example, posting a discriminatory advertisement

on three different websites, will be counted as one violation for the purpose of

assessing a penalty under this section.

(F) If the employer believes that the employer size used to assess the imposed penalty

is incorrect, the employer may call the number listed on the Early Resolution

Notice.

(v) Admission of liability. An admission of liability must be returned to the Commission

in the manner prescribed in the Early Resolution Notice. Once the admission is

received, the Law Enforcement Bureau shall promptly forward such agreement to the

Chair. The signature of the Chair with the notation “SO ORDERED” shall be

construed to be a final order of the Commission. A copy of such order shall be served

upon the respondent.

(vi) Contesting Liability and Filing an Answer

(A) Notwithstanding any provision of sections 1-61 or1-62 of this title, if a respondent

elects to deny liability and contest the allegations in the complaint, the respondent

shall file an answer and upon receipt of the answer, the Law Enforcement Bureau

shall refer the case to the Office of Administrative Trials and Hearings for a

hearing pursuant to section 1-71 of this title.

(B) For purposes of a hearing, the case will proceed in accordance with subchapter C

of Chapter 2 of Title 48 of the Rules of the City of New York.

(vii) Failure to Respond

(A) If a respondent fails to respond within 90 days to a complaint accompanied by an

Early Resolution Notice, all allegations in the complaint will be deemed admitted

unless good cause to the contrary is shown pursuant to section 8-111(c) of the

Human Rights Law.

(B) Upon default, the Law Enforcement Bureau may refer the case to the Office of

Administrative Trials and Hearings pursuant to § 1-71 of this title and, in a

written motion pursuant to chapter 1 of Title 48 of the Rules of the City of New

York, seek an expedited trial and issuance of a report and recommendation that

finds respondent in default and recommend the affirmative relief and penalties

requested by the Law Enforcement Bureau. The motion papers will include: all

supporting evidence; a copy of the complaint and any additional documentation

sent to the respondent; the Early Resolution Notice; and proof of service of the

motion.

(viii) Relief from Default in an Early Resolution Case. At any time prior to the issuance of

a decision and order, the respondent may move for relief from default.

(j) Criminal Record Discrimination in Obtaining Credit. No person may ask about or take any

adverse action based on the non-conviction history of an individual in connection with an

application or evaluation for credit.

(k) Employers Seeking the Work Opportunity Tax Credit (“WOTC”). Employers who wish to

claim the WOTC credit are not exempt from this chapter or the Fair Chance Act. Employers

may, however, require an applicant to complete IRS form 8850 and US Department of Labor

Form 9061 before a conditional offer is made so long as the information gathered is used

solely for the purpose of applying for the WOTC.