Navigating Job Rescinding Laws: Your Rights and Protections in NYC

By Douglas Lipsky
Partner

Learning that a potential employer has rescinded your job offer after a background check can be devastating. In these uncertain economic times, securing a job offer can be life-changing. Employers do have a right to rescind a job offer in some cases. Nonetheless, New York City’s Fair Chance Act limits the instances in which an employer can rescind a job offer after completing a criminal background check. 

Understanding New York’s Fair Chance Act

New York’s Fair Chance Act, which came into effect on October 27th, 2015, plays a crucial role in helping job applicants with criminal convictions find employment. Under this law, New York employers cannot ask about a job applicant’s criminal history until after making a conditional job offer. Potential employers cannot discuss your criminal record until they have taken the time to consider an applicant on the merits of his or her job application.

Who Is Protected by the Fair Chance Act?

Under the Fair Chance Act, job applicants who are applying to work at a company for the first time are protected from discrimination based on their criminal history. Additionally, a current employee of the company who is seeking a promotion or a lateral job transfer is also protected. Whether you are applying for a position at a company for the first time, or you work for the company and are seeking another job within the company, you are protected by the Fair Chance Act.

Employer Responsibilities After Offering a Job

While the Fair Chance Act offers protection for those with a criminal history, employers are not always required to hire employees with criminal backgrounds. Eventually, your potential employer will probably learn about your past criminal history. Employers cannot ask about your criminal history before offering you a job; however, they can investigate your background after making a job offer. Keep in mind that an employer must get your written permission before running a background check after making a conditional offer of employment.

After an employer makes a conditional job offer, they can inquire about an applicant’s criminal history. When an employer investigates your background and discovers a criminal history, they can decide not to hire you, but only after meeting certain requirements.

Employers Must Explain Their Decision

The employer must provide you with a copy of the background check or other information they considered when deciding to rescind the offer. Employers must also explain the decision not to hire you and prove that they had a legal right to deny employment. Their written explanation must include how your criminal record or the specific job duties of the potential job create an unreasonable risk. Employers cannot simply state that the prospective employee created too much of a risk. Instead, they need to provide specific examples in their written notice.

Employers can only rescind your offer if hiring you would “involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.” Additionally, when an employer can draw a direct line between your criminal conviction and the prospective job, the employer can rescind your offer. When employers withdraw a conditional employment offer based on your criminal history without completing the process outlined in the Fair Chance Act, they violate the law.

Seeking Compensation for a Rescinded Job Offer

Your job search should be based on your qualifications and merits, not solely on your criminal history. If you believe your rights have been violated under the Fair Chance Act, talk to an employment lawyer about your options. 

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.