Two Years of New York City’s Fair Chance Act: From Robust Legislation to Effective Enforcement

by Allison Que

 

Two years ago, one of the strongest fair chance hiring laws in the country took effect in New York City.

Two years after New York City’s Fair Chance Act (FCA) took effect, the FCA remains one of the strongest fair chance hiring laws in the country, affecting almost two million New Yorkers.

The passage of the FCA in 2015 was the result of sustained advocacy by community and legal groups, as well as people who were formerly incarcerated themselves.

“We are so proud to have been part of the campaign to win the Fair Chance Act in New York City—a transformational law that has opened job opportunities for millions of New Yorkers with criminal records and challenged the way we stigmatize and perpetually punish the formerly incarcerated,” says Alyssa Aguilera, Co-Executive Director at VOCAL-NY, a grassroots membership organization, and one of the organizations that helped pass the FCA.

The FCA remains one of the strongest examples of dozens of fair chance laws and policies that have been adopted across the country in recent years. It levels the playing field for job applicants with records by requiring employers, in both private and public sectors, to postpone background checks until a conditional offer is made.

“Employers no longer look to ask the question, but really listen to what the candidate has to say about his or her skills and what they are able to bring to the table,” says Renee Firms, Business Relations Liaison at the Center for Employment Opportunities (CEO), an organization that provides employment services to men and women with recent criminal convictions.

If a background check reveals a past conviction, the FCA provides guidance to employers on how to conduct an individualized assessment of the applicant and whether the past conviction is relevant to the job. Employers must also provide the applicant an opportunity to respond before rescinding the conditional offer.

Terry Ellis, Manager of Job Development and Training NYC at CEO, notes that for jobseekers, “[you] can’t erase your past, but this law puts you in a position to move forward in life.”

The FCA also benefits employers. CEO’s New York State Director of Workforce Development, Jessica Centeno, believes that the FCA “opens an opportunity for employers to engage a new pool of talent and hire … loyal employees,” ultimately increasing productivity and improving employers’ bottom lines.

The FCA is part of a nationwide trend in passing more comprehensive fair chance laws and policies. This past October, the California Fair Chance Act (AB 1008) was signed by the Governor. The California version of the law, which extends fair chance protections to cover workers in the private sector, contains the same major provisions that make New York City’s FCA so strong.

From Passage to Implementation

Not only does the FCA have some of the strongest provisions among fair chance hiring laws across the country, the past two years of the law being in effect provide valuable lessons for other agencies and advocates on how to effectively implement and enforce such a law.

One of the best practices to ensure strong compliance with a new law is for the relevant agency to issue formal rules that interpret the law. The city’s Commission on Human Rights (the “Commission”), which is the agency charged with enforcing the FCA, has been proactive in adopting this best practice. Right after the FCA took effect, the Commission released comprehensive enforcement guidance to interpret the law. After soliciting input from the public, the Commission finalized the rules implementing the FCA, which became effective this past August. The final rules, by setting forth definitions and clarifying procedures, address issues that are most commonly seen in practice.

The Commission has published several settlements with different employers for their noncompliance with the FCA. These public disclosures underline the continued need for education and strong agency action. The noncompliant employers were required to revise their hiring policies, pay damages, and train their employees on the law. Beyond providing the noncompliant employers with a roadmap for how to comply with the FCA, these published enforcement decisions also serve a deterrent purpose by putting other employers on notice about their obligations under the FCA and the cost of non-compliance.

The Role of Community Partnerships

In addition, any law intended to help vulnerable workers and job applicants requires a partnership between the agency charged with enforcing the law and the community-based groups that have the trust of the community. For a variety of reasons, ranging from lack of information to lack of trust, people whose rights have been violated may never come forward to file a complaint with a government agency. New York City is fortunate to have a strong network of community groups. Organizations like VOCAL-New York and the Community Service Society of New York (CSS), which helped to draft and support the passage of the FCA, continue to play active roles in educating community members and jobseekers about the FCA, and helping those who have experienced violations of the FCA enforce their rights.

Looking forward, the Commission should keep up its efforts in educating both employers and job applicants about the law, including the newly effective final rules. The Commission should vigorously enforce the law when it is violated, and devote adequate resources and attention to its implementation.

As with any law that seeks to stamp out discrimination, realizing its goals will take time and sustained effort. We believe that New York City has the right conditions to ensure long-term success of the FCA: An enforcement agency charged with implementing the law, a supportive political and regulatory environment at the local and state level, and a strong network of advocates and community groups to aid in educating employers and the public about the law.

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