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Employers Beware: New Laws Limit Employee Background Checks

March 21, 2022 by in Employment

By: Nikki R. Breeland

If you plan to hire new employees, and are accustomed to handing your candidates a form asking about their criminal history, then listen up.  New laws, referred to as “Fair Chance” laws, subject employers engaging in such traditional job inquiries to fines and damages.

In fact, 37 states, and 150 cities around the country have enacted Fair Chance laws, including New York State, New York City, New Jersey, California, and Colorado.[1]

Indeed, New York City’s Fair Chance Act outlaws all forms of pre-offer criminal background checks – and any requirements for clean criminal records as a condition to employment.[2]  In fact, New York City employers may only perform a criminal background check after the potential hire has received a conditional offer of employment.[3]

So, what action can a New York City employer take if a candidate – or new hire — is found to have a criminal record after providing the candidate a conditional offer, or after signing an employment agreement? 

The requirements in such circumstances are strict and the employer is not permitted to simply withdraw the conditional offer, or terminate the employee’ employment.  Instead, the employer is required to: (1) undertake a complex, fact intensive, written assessment of eleven factors known as the “Fair Chance Factors”[4]; (2) disclose to the candidate the criminal background report and any other background documents relied upon by the employer; (3) provide the candidate with the written Fair Chance analysis; and (4) provide the candidate an opportunity to respond to the analysis and background report in writing.[5]

Failure to follow these complex rules – among others —  could result in fines and damages against the employer.

The Fair Chance Act is an example of the minefield New York City employers face each day.  SLG has extensive experience protecting clients against liability arising from employment law concerns and other matters.  SLG would be happy to assist your company as it navigates the possible pitfalls presented by these and other issues. For more information on how SLG can assist your business, please contact us at

[1]  See N.Y. C.L.S. Correct., Art. 23-A (2022); N.Y.C. Admin Code §8-107(10(c)); N.J. Stat. § 34:6B-14 (LexisNexis, Lexis Advance through New Jersey 219th Second Annual Session, L. 2021, c. 360, and J.R. 9); Cal. Code Regs. tit. 2, § 11017.1 (Lexis Advance through Register 2022, No. 8, February 25, 2022)); and 7 Colo. Code Regs. § 1103-9 (Lexis Advance through all regulations in effect as of February 25, 2022).

[2]  N.Y.C. Admin. Code §8-107(10(c)). Certain jobs that concern security or public safety are excluded from these requirements.

[3]  N.Y. C.L.S. Correct., Art. 23-A (2022).

[4]  N.Y. Correct. Law § 753 (2022).

[5]  N.Y. Correct. Law §§ 752-54 (2022).

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