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IS YOUR EMPLOYMENT AD DISCRIMINATORY? UNDER THE FAIR CHANCE ACT (“FCA”), IT MIGHT BE

May 25, 2017 • Posted By Victoria Kennedy • Complex Litigation, Insurance Coverage, Labor & Employment, Risk Managment

            On October 27, 2015, New York City enacted the Fair Chance Act (“FCA”), which expanded upon New York Correction Law Article 23-A to prohibit potential employers from advertising that applicants must not have any felony convictions.  The FCA also prohibits any ads that state or imply that criminal background checks will be conducted. 

            Since its enactment, companies have been surprised by how broadly the FCA has been enforced, since background checks are routinely advertised.   Under the FCA, the New York City Commission on Human Rights (the “Commission”) permits anyone with a criminal conviction to maintain suit against a company with an offending ad regardless of whether the individual ever intended to seek employment with the company or is minimally qualified.   In a particular instance, the Commission found probable cause to support several discrimination complaints by an individual who performed online searches specifically for such ads solely for the purpose of filing suit, and despite the individual’s lack of interest in employment with the companies sued.           

            French & Casey has defended insurance and financial services agencies that unknowingly violated the City–enacted FCA while attempting in good-faith to conform to State regulations.   Since prospective insurance sales and financial services agents must be licensed by the State, and the State can—and frequently does—deny licensure to those with felony convictions, these agencies were unaware that their ads would be deemed discriminatory for acknowledging the State’s guidelines. The Commission interprets New York Insurance Law § 2110 as “permitting” the State to deny insurance sales licensure to applicants with felony convictions, but not “requiring” the State to deny them.  Therefore, according to the Commission, agencies should not assume that an applicant will be eventually denied the necessary license for employment, and further cannot notify applicants of the possibility of a denial. 

            This peculiar result of the FCA exemplifies how consequences can be harsh for even the most well-meaning of businesses, especially small businesses that might not have the benefit of in-house legal personnel.  Properly structured labor and employment compliance policies are well worth the investment to any company, regardless of size, because hindsight might be 20/20 but it can also very costly.

           

French & Casey, LLP advises companies in various areas of commercial and civil litigation, construction, labor and employment issues, alternative dispute resolution, and contract negotiations. For further information contact Victoria Kennedy, Esq. at vkennedy@frenchcasey.com.