Learning that a potential employer has rescinded your job offer after a background check can be devastating.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.
If an employer rescinded your job offer after conducting a criminal background check, you might have the right to submit a claim under the Fair Chance Act. The sooner you contact an experienced New York City employment lawyer, the better. Contact Lipsky Lowe LLP today to schedule your initial consultation. We represent clients in employment litigation throughout Manhattan, Queens, Brooklyn, the Bronx, and Staten Island, as well as the surrounding areas.
New York’s Fair Chance Act
went into effect on October 27th, 2015. This law helps 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 in the company, you are protected by the Fair Chance Act.
An Employer’s Legal Responsibilities After Offering the Applicant 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, he or she can decide not to hire you, but only after meeting certain requirements. First, an employer must provide you with a copy of the background check or other information they considered when deciding to rescind the offer.
Employers Must Explain Their Decision to Not Hire You
The employer 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 their conditional employment offer based on your criminal history without completing the process outlined in the Fair Chance Act, they violate the law.
Steps Employers Must Take Before Rescinding a Job Offer
Employers must take the following steps or orders, or they will face penalties under the law. First, the employer must give the applicant a written copy of the injury they conducted into the employee’s criminal history. Second, the employer must share a written copy of the employer’s analysis under Article 23-A of the Fair Chance Act. There are several factors mentioned under Article 23-A, including:
- The seriousness of the job applicant’s conviction history
- Any information related to the applicant’s good conduct or rehabilitation
- A legitimate interest in protecting property, individuals, or the general public
- The age of the applicant when the events leading to the conviction took place
- The time that has elapsed since the events that lead to the conviction
- The bearing of the conviction history on the applicant’s ability to perform the job duties
- The specific job duties and responsibilities
- New York promotes the employment of people with criminal records
Third, the employer must keep the position open for at least three business days from the time of the receipt of the inquiry and analysis. During this period, you should have the opportunity to correct any inaccurate or erroneous information. In other words, an employer can’t fail to respond to your calls or emails regarding your job application until the three-day period runs out. Each of these three requirements is separately enforceable under the Fair Chance Act.
Has Your Job Been Rescinded After a Background Check Due to Your Criminal Record?
If a potential employer rescinded your job after making you an offer, you might have a right to compensation. You may have a legal claim under the New York City Human Rights Law. At Lipsky Lowe LLP, our skilled employment lawyers can help you advocate for your rights. Administrative judges have the power to require businesses that violate the Fair Chance Act to pay back pay, front pay, as well as compensatory and punitive damages to the employees affected by their violation of the law.
Contact Our Experienced New York City Employment Lawyers Today
The best thing you can do after losing a job offer due to your criminal history is to contact an experienced New York City employment lawyer. At Lipsky Lowe LLP, we focus our entire legal practice on advocating for employees who’ve suffered unlawful discrimination in the workplace. Contact us today to schedule your initial consultation.