The Business Council of New York State S Comments on New York City Human Rights Commission

DRAFT

The Business Council of New York State’s Comments on New York City Human Rights Commission’s Proposed Rules on the Fair Chance Act, Local Law No. 63 of 2015

The BusinessCouncil, New York’s largest statewide employer association, respectfully submits the following comments regarding the propose rules significantly changing the Fair Chance Act, Local Law No. 63 of 2015. Our concerns regarding the proposed rules are as follows:

Pending Criminal Cases

The proposed rules attempt to circumvent employer’s well-established rights under existing law to deny employment to an applicant, or terminate the employment of an employee, based on a pending arrest or criminal accusation regardless of whether the alleged criminal offense has any bearing on the duties of the job or would pose an unreasonable risk to property or the safety or welfare of specific individuals or the general public. See, e.g., Green v. Wells Fargo Alarm Serv.,192 A.D.2d 463, 464, 596 N.Y.S.2d 412, 413(1st Dep’t 1993) (Article 23-A affords no relief to plaintiff alleging that his employment was terminated because he was arrested for driving while intoxicated and possession of unlicensed firearm); Garcia v. Paylock, No. 13-CV-2868 (KAM), 2014 WL 298593, **7-8 (E.D.N.Y. Jan. 28, 2014) (City and State human rights law provisions prohibiting adverse employment action based on arrest of or criminal accusation against employee do not apply where employee is terminated because of criminal accusation that is pending against employee at the time of his termination and has not yet been resolved in his favor).

Nothing in the Fair Chance Act (“FCA”) abrogates these well-established substantive rights, or otherwise prohibits an employer from denying employment or terminating an employee based on a pending arrest or criminal charge that has nothing to do with the job and poses no apparent risk to persons or property in the workplace. For example, the FCA’s substantive provisions on conviction-based adverse employment actions simply incorporate existing Article 23-A of the New York State Correction Law, NYC Admin. Code § 8-107(10)(a) (“It shall be an unlawful discriminatory practice for any employer . . . to deny employment to any person or take adverse action against any employee by reason of such person or employee having been convicted of one or more criminal offenses, . . . when such denial or adverse action is in violation of the provisions of article twenty-three-a of the correction law”) (emphasis added) – which does not apply to pending arrests or criminal charges.

Notwithstanding the FCA’s cumbersome language, the requirement that employers “perform an analysis of the applicant under Article 23-A of the correction law” before taking adverse employment action cannot apply to pending arrests or criminal charges because Article 23-A, by its very terms, applies only to arrests and criminal charges that resulted in a conviction.

In fact, the Commission brazenly and unlawfully attempts to change the very text of Article 23-A itself, implicitly conceding that the FCA – and the text of the real Article 23-A incorporated therein – cannot apply to pending criminal charges that have not yet resulted in conviction. Section 2-04(5) of the Proposed Rules incorrectly set forth the eight factors of the Article 23-A analysis as follows [significant deviations from the real Article 23-A are emboldened and italicized]:

An employer must consider the following factors in evaluating an applicant or employee under the Article 23-A analysis:

(1) That New York public policy encourages the licensure and employment of people with criminal records;

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

(3) The bearing, if any, of the conviction history or pending criminal case on their fitness or ability to perform one or more of the job’s duties or responsibilities;

(4) The time that has elapsed since the occurrence of the events that led to the applicant or employee’s criminal conviction or pending case, not the time since arrest or conviction;

(5) The age of the applicant or employee when the events that led to their conviction or pending case occurred;

(6) The seriousness of the applicant’s or employee’s conviction history or pending criminal case;

(7) Any information produced by the applicant or employee, or produced on the applicant’s or employee’s behalf, regarding their rehabilitation and good conduct;

(8) The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public. [Emphasis added].

Contorting the definition of “applicant” to include current employees

The Commission’s proposed rules unlawfully seek to expand the coverage of the FCA’s procedural provisions – set forth in subdivision 11-a of section 8-107 of the City Human Rights Law – which, by their terms, are limited to “any person who is in the process of applying for employment with such employer,” NYC Admin. Code § 8-107(11-a)(a)(2), to encompass not just job applicants but also“current employees who are seeking or being considered for positive changes to the terms and conditions of their employment, including, without limitation, promotions.” Proposed Rules, Section 2-01 (definition of “Applicant). The Commission attempts to accomplish this disingenuous result by contorting the definition of a job “applicant” beyond what any rational person could possibly understand the term to mean, see id., and beyond what the law permits, to include employees who most definitely are not “in the process of applying for employment with such employer.”

The Commission also ignores the incontrovertible legislative intent and understanding, reflected in the 2007 amendments to Article 23-A(and the associated legislative history) which expanded the statute’s coverage beyond just applicants to include current employees, that the term “applicant” necessarily excludes current employees as a matter of law. See N.Y. State Senate Introducer’s Mem. in Support, N.Y. Bill Jacket, 2007 S.B. 1602, Ch. 284 (Jan. 23, 2007) (Summary of Provisions) (“Section 2 of the bill amends Section 751 of the Correction Law to make Article 23-A applicable to current employees”). Had the City Council intended for § 8-107(11-a) to cover current employees it could have easily so stated. Instead, it limited the scope of coverage to persons “in the process of applying for employment with such employer,” NYC Admin. Code § 8-107(11-a)(a)(2).

By irrationally defining the term “applicant” as it proposes, the Commission illicitly attempts to foist onto law-abiding employers the burdens of complying with the FCA’s procedural requirements anytime the employer seeks criminal history information on an employee who is “seeking positive changes to the terms and conditions of their employment,” even if the employee has not applied for another position with the employer, and even if the employee is not being considered for promotion or any other “positive changes to the terms and conditions of their employment.” It is difficult to imagine any employee who, in one sense or another, is not “seeking positive changes to the terms and conditions of their employment.”

The proposed Fair Chance Act Notice form

The proposed Fair Chance Act Notice, the form created by the Commission for employer use in documenting the Article 23-A analysis, does not comport with the law and must be modified.

The Notice form is at direct odds with the law on the issue of the applicant’s proof of rehabilitation. The form states, “If you did not have a certificate [of relief from disabilities or certificate of good conduct] we did not hold that against you” – this despite the plain and simple fact that the law allows employers to weigh the lack of such certificate heavily against the applicant in the Article 23-A analysis.

Preemption by other laws that require criminal background checks

On the preemption issue, the Proposed Rules are completely different – surprisingly, much broader – than the narrow preemption provisions set forth in the FCA and the Commission’s interpretive guidance from November 2015. This ambiguity requires clarification as to whether the Commission actually intends to exempt from the FCA’s reach a broad field of cases that would not appear to be exempt under the plain language of the FCA itself.

Per Se Violations

The Commission’s Proposed Rules do nothing to address the already burdensome requirement’s imposed on NYC businesses. In fact, just the opposite. The proposed list of per se violations set many employers up for compliance failures. For example, the Commission has determined that using a standard form, such as a boilerplate job application, intended to be used across multiple jurisdictions, that requests or refers to criminal history would be a per se violation even with disclaimers or other language indicating that applicants should not answer specific questions.

With these inconsistencies and additional administrative burdens, The Business Council strongly recommends the Commission revisit the Proposed Rules to address these concerns.