State/City-Specific Adverse Action Processes

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This overview of state or city-specific requirements is frequently updated, but legal requirements change quickly in some jurisdictions, and MinistrySafe/Abuse Prevention Systems cannot guarantee all information is current and accurate. The synopsis of content is ours: please read the actual statute, ordinance or provision to form your own conclusions. Always consult your attorney for legal advice.


The requirements listed below are in addition to the Adverse Action Process outlined here.

 

California Adverse Action Process - In addition to the FCRA adverse action process
The pre-adverse action notice now required must identify the criminal record(s) that may result in the adverse action.  One method is listing the record(s) in the pre-adverse action notice, such as:: Tarrant County Case No. 5555 -Assault- or simply  “See highlighted records”. 

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008 

 

  • Los Angeles - Private Sector - In addition to the FCRA adverse action process
    • Individualized Assessment must be conducted before taking adverse action against an applicant.  Contact MinistrySafe/Abuse Prevention Systems for Los Angeles Individualized Assessment form.
    • Consideration of rebuttal information: If the applicant provides rebuttal information, employers must consider the information and perform a written reassessment of the proposed adverse action. If, after performing the reassessment, the employer takes adverse action against the applicant, the employer must notify the applicant of the decision and provide a copy of the written reassessment.

http://clkrep.lacity.org/onlinedocs/2014/14-0746_ORD_184652_12-9-16.pdf 

 

These requirements are in addition to California state law requirements.

 

  • San Francisco - Private Sector - In addition to the FCRA adverse action process  
    • Individualized Assessment: Employers must conduct an individualized assessment prior to sending a final adverse action notice.  Before taking final adverse action, a waiting period of seven calendar days is required.

https://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/resolutions05/r0764-05.pdf

 

Connecticut - Public and Private Sector -  In addition to the FCRA adverse action process   

Final adverse action notice must inform the candidate what information in the background check led to final adverse action and why.   

https://www.ctdol.state.ct.us/wgwkstnd/laws-regs/statute31-51i.htm 

 

Chicago, Illinois - Public and Private Sector - In addition to the FCRA adverse action process   

Final Adverse Action: Must inform candidates of the reason for adverse action in the final adverse action process. 

https://chicago.legistar.com/LegislationDetail.aspx?ID=1939030&GUID=26A79C44-E36A-40E3-8649-C7D77EA362EB&Options=Advanced&Search&FullText=1 

 

Waterloo, Iowa - Public and Private Sector -  In addition to the FCRA adverse action process  
Employers with 15 or more workers (excluding private schools) may not make an adverse hiring decision based on an applicant’s criminal record without a legitimate business reason.  (this links to a PDF, how do I link a PDF to this? 

 

Montgomery County, Maryland -  In addition to the FCRA adverse action process  

  • Pre Adverse Action: The process must inform the applicant which records may lead to final adverse action.
  • Waiting Period: Must wait 7 days after sending a pre-adverse action notice to send the final adverse action notice.

https://www.montgomerycountymd.gov/council/Resources/Files/agenda/col/2020/20201110/20201110_12A.pdf 

 

Prince George’s County, Maryland - In addition to the FCRA adverse action process

  • Pre-Adverse Action: Process must inform the applicant which records may lead to final adverse action.
  • Individualized Assessment: Must conduct an Individualized Assessment prior to sending a final adverse action notice.

https://princegeorgescountymd.legistar.com/LegislationDetail.aspx?ID=2467190&GUID=4A27F34A-18C2-4286-B501-A4F98D43ED3F 

 

Columbia, Missouri - In addition to the FCRA adverse action process

A city ordinance suggests that employers perform an Individualized Assessment prior to sending a final adverse action notice.

https://www.como.gov/CMS/pressreleases/downloadfile.php?id=858 

 

Kansas, Missouri - Private Sector - In addition to the FCRA adverse action process

Must conduct an Individualized Assessment prior to sending a final adverse action notice.  This assessment must demonstrate that the employment-related decision was based upon all information available-- including consideration of the frequency, recentness, and severity of the criminal record and that the record was reasonably related to the duties and responsibilities of the position. Ordinance No. Sec 38-104: https://library.municode.com/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR_DIV1INGE_S38-104CRREEM  

 

St. Louis, Missouri - Public and Private Sector - In addition to the FCRA adverse action process
Individualized Assessment recommended: An employer may only base a hiring or promotional decision on an applicant’s criminal history if the employer can demonstrate that the decision is based on all information available including the frequency, recentness, and severity of the criminal history and the history is reasonably related to the job position.
https://www.stlouis-mo.gov/government/departments/mayor/news/ban-the-box.cfm 




New Jersey - Public and Private Sector - In addition to the FCRA adverse action process

Pre-adverse action:  As a best practice, employers should include New Jersey’s Summary of Rights with each pre-adverse action notice.

https://www.njleg.state.nj.us/2014/Bills/A2000/1999_R1.PDF 

 

New York - Public and Private Sector - In addition to the FCRA adverse action process

  • Individualized Assessment: Must be performed per the requirements of NY Corrections Law 23-A.
  • Candidate access to information: Candidates who request a written statement setting forth the reasons for denial must be provided such a statement within 30 days of the request.
  • According to the basic terms of Article 23-1, an employer may not deny or terminate employment on the basis of prior criminal convictions, except under two (2) narrowly defined circumstances:
  1. Direct relationship between some or all of the previous criminal offenses and the specific job or position the individual is seeking or holds; or
  2. Hiring, or continuing to employ the individual would present an unreasonable risk to the employer’s property, specific individuals, or the general public.

Contact MinistrySafe/Abuse Prevention Systems for NY Article 23-A Evaluation form.

https://www.nysenate.gov/legislation/laws/EXC/296 

 

New York City, New York - Public and Private Sector - In addition to the FCRA adverse action process AND Article 23-A

  • Individualized Assessment: To be performed in compliance with NY Corrections Law 23-A.  This assessment must be included with the pre-adverse action notice.
  • Pre-adverse action:

       Employers must:

  • Provide a copy of the Individualized Assessment under NY Corrections Law 23-A with the pre-adverse action notice, along with a copy of any information relied on to determine an applicant has a criminal record.  This is not limited to a criminal background check and includes any information accessed online and independently.  This information can include online search results, conversations with third parties, etc.  The time and date you accessed the information must be included.  Consider using the official Fair Chance Notice provided by the Commission on Human Rights.
  • Request additional information concerning rehabilitation or good conduct from candidates with criminal records.
  • Reassessment after changes to the background check - If the applicant demonstrates that the background check contained an error, employers must conduct the Article 23-A analysis again, based on the correct information.  Employers must then follow the Fair Chance Process again, providing the applicant a copy of the corrected inquiry, the Article 23-A analysis, and 3 additional business days to respond.
  • Candidate access to information - Candidates who request a written statement setting forth the reasons for denial must be provided a statement within 30 days of the request, in compliance with NY Corrections Law 23-A.

https://www1.nyc.gov/site/cchr/law/fair-chance-act.page 

 

Syracuse, New York - Public and Private Sector - In addition to the FCRA adverse action process AND Article 23-A

Pre-Adverse action - Employers are required to inform the candidate of the specific information in the background check that could lead to final adverse action.

https://library.municode.com/ny/syracuse/codes/code_of_ordinances?nodeId=REGEOR_CH53SYFAEMLIOR_ART1GEPR_S53-1TI 

 

Portland, Oregon - Private Sector - In addition to the FCRA adverse action process

  • Individualized Assessment - Must conduct an individualized assessment prior to final adverse action.
  • Final adverse action - If an employer rescinds a conditional offer of employment because of an applicant’s criminal history, the employer must notify the applicant of that decision promptly and in writing, identify the specific item of criminal history on which the recission is based, and provide the source of that criminal history.

https://www.portland.gov/charter-code-policies/documents/adm-2101-removing-barriers-employment-administrative-rules 

 

Pennsylvania - Public and Private Sector - In addition to the FCRA adverse action process

  • Individualized Assessment - All employers in Pennsylvania must assess whether convictions relate to the applicant’s suitability for employment in the position for which the applicant has applied.
  • Consideration of records - Employers should only consider pending cases and felony and misdemeanor convictions.  Non-convictions should not be used in the hiring decision, nor should summary offenses.

https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=18&div=0&chpt=91 

 

Philadelphia, PA - Public and Private Sector - In addition to the FCRA adverse action process

  • Individualized Assessment - Must be performed prior to final adverse action.
  • Pre-adverse action - The pre-adverse action process must provide an explanation as to why disqualification is being considered and must highlight all convictions supporting potential adverse action.
  • Waiting period - You must wait 10 business days between sending a pre-adverse action notice and sending a final adverse action notice.
  • Final adverse action - Your final adverse action process must inform the candidate of what specifically in the report led to the final adverse action.

Private Sector: https://www.phila.gov/departments/philadelphia-commission-on-human-relations/ 

Public Sector: https://www.phila.gov/ExecutiveOrders/Executive%20Orders/eo515.pdf 

 

Austin, Texas - Public and Private Sector - In addition to the FCRA adverse action process

  • Individualized Assessment - Must be performed prior to final adverse action.
  • Final Adverse Action - This notice must state that the final adverse action was based on criminal history if the results of the background check led to the final adverse action.

Private Sector: https://www.austintexas.gov/sites/default/files/files/HR/ORD_20160324-019.pdf 

Public Sector: http://www.austintexas.gov/edims/document.cfm?id=231929 

 

Seattle, Washington - Public and Private Sector - In addition to the FCRA adverse action process

  • Pre-Adverse action - You must inform the applicant which specific convictions relate to the job’s responsibilities, thus warranting a denial.
  • Individualized Assessment - This location requires employers to perform an Individualized Assessment prior to final adverse action.

https://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/House%20Passed%20Legislature/1298-S2.PL.pdf 

 

Spokane, Washington - Public and Private Sector - In addition to the FCRA adverse action process

Individualized Assessment - Requires an individualized Assessment be performed prior to final adverse action.  Employers must conform to EEOC guidance when taking adverse action based on criminal records.  No employer may disqualify an employee from applicable employment solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job.

https://www.nelp.org/wp-content/uploads/Spokane-City-Ordinance-2017-executed.pdf 

 

Washington DC - Public and Private Sector - In addition to the FCRA adverse action process

  • Pre-adverse action notice - A copy of the document Notice of Right to File Complaint must be included with a pre-adverse action notice.
  • Individualized Assessment - Must conduct an Individualized Assessment prior to sending a final adverse action notice.
  • Revocation of conditional offer - An employer may only take adverse action against an applicant for a legitimate business reason.  The employer’s determination of a legitimate business reason must be reasonable in light of the Individualized Assessment, which incorporates EEOC criteria.
  • Candidate’s right to access - If an applicant believes that a conditional offer was terminated on the basis of a criminal conviction, the applicant may request, within 30 days after the adverse action, that the employer provide the applicant within 30 days after the receipt of the request:
    • A copy of all records procured by the employer in consideration of the applicant, including criminal records; and
    • A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights

https://ohr.dc.gov/sites/default/files/dc/sites/ohr/publication/attachments/OHRGuidance16-02_FCRSA_FINAL.pdf 


 This overview of state or city-specific requirements is frequently updated, but legal requirements change quickly in some jurisdictions, and MinistrySafe/Abuse Prevention Systems cannot guarantee all information is current. The synopsis of content is ours: please read the actual statute, ordinance or provision to form your own conclusions. Always consult your attorney for legal advice.

Tip: To learn more about the Adverse Action process, please see this article.

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