Eric Adams, Mayor
Annabel Palma, Chair and Commissioner
NYC.gov/HumanRights
It also provides the applicant an opportunity to address errors on the employer’s background report, as discussed
below.
After receiving additional information from an applicant, an employer must examine whether the new
information changes the employer’s Fair Chance Analysis. If, after communicating with an applicant, the employer
decides not to hire them, it must relay that decision to the applicant in writing within a reasonable period of time.
iv. Handling Errors in the Background Check
Errors on background checks are remarkably common.
71
Errors can occur, for example, because the
background check was run for the wrong person or because of recordkeeping errors by police, prosecutors, or the
court.
72
If an applicant identifies an error on the background report, they should promptly notify the employer and
the employer must then conduct the Fair Chance Analysis based on the corrected criminal background information,
to ensure its decision is not tainted by the previous error. As before, if the employer can show a direct relationship
or unreasonable risk and intends to take an adverse action on that basis, it must follow the Fair Chance Process:
the applicant must be given a copy of the corrected inquiry, the employer’s Fair Chance Analysis, and a reasonable
period of at least five business days to respond, with an opportunity to provide any additional information for the
employer to review and re-examine its analysis.
v. Handling Applicants’ Intentional Misrepresentations of Their Pending Cases or Conviction
Histories
The NYCHRL does not prohibit an employer from disqualifying an applicant based on the applicant’s
intentional misrepresentation about their conviction history or pending cases. A misrepresentation is intentional if it
is made with knowledge of its falsity and with intent or purpose to deceive. A covered employer may never, however,
disqualify an applicant based on their representations about non-convictions.
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Where an employer properly bases its decision to deny employment on an intentional misrepresentation by
the applicant, it is not required to perform the Fair Chance Analysis. Before disqualifying an applicant based on a
perceived intentional misrepresentation, the employer is required to provide the applicant with a copy of any
information that led the employer to believe that the applicant intentionally misrepresented their criminal record and
afford the applicant a reasonable period of at least five business days to respond.
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If the applicant credibly
demonstrates either that the information provided was not a misrepresentation or that a misrepresentation was
unintentional, the employer is required to perform the Fair Chance Analysis before taking adverse action against
the applicant.
Some discrepancies between an applicant’s criminal background record and self-report of their criminal
history may not constitute credible evidence of an intentional misrepresentation. Discrepancies can arise despite
the absence of an intentional misrepresentation because, among other reasons, the applicant incorrectly assumed
a conviction was too old to be considered or was not relevant to the employer’s assessment or the job; the applicant
confused the charge initially filed against them with the one for which they were convicted; or because of an error
71
See, e.g., The Rap-Sheet Trap: Mistaken Arrest Records Haunt Millions, City Limits (Mar. 3, 2015),
https://citylimits.org/2015/03/03/the-rap-sheet-trap-mistaken-arrest-records-haunt-millions/
(“By one estimate, an astonishing 2.1 million New
York state residents have mistakes on their criminal justice histories.”); Legal Action Center, The Problem of RAP Sheet Errors: An Analysis
By the Legal Action Center,
https://www.lac.org/assets/files/LAC_rap_sheet_report_final_2013.pdf (last accessed June 23, 2021) (reviewing
criminal history records of approximately 3,500 people in New York from 2008 to 2011 and finding “that at least 30% of these records
contained at least one error, and some contained as many as ten or more.”).
72
The Rap-Sheet Trap: Mistaken Arrest Records Haunt Millions, City Limits (Mar. 3, 2015), https://citylimits.org/2015/03/03/the-rap-
sheet-trap-mistaken-arrest-records-haunt-millions/.
73
See note 52, supra, for a list of limited exceptions to this general rule.
74
N.Y.C. Admin. Code § 8-107(10)(g).