TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers
FROM: Scott DeFruscio, Director of Staffing Services
SUBJECT:Fair Chance Hiring Application Revisions and Statewide Employment Application
DATE: July 10, 2015

Fair Chance Hiring

New York State seeks to maximize the pool of talented applicants for agencies to consider for employment and to offer all applicants a fair opportunity to be considered for employment. Disclosure of a criminal conviction before applicants have had a chance to demonstrate their qualifications for a job may have a chilling effect on qualified applicants pursuing employment and on potential employers considering applicants with criminal convictions for employment. In order to minimize such effects, New York State follows a Fair Chance Hiring (FCH) policy.

Under the FCH policy, applicants for employment may not be asked questions relating to criminal conviction history or pending criminal proceedings – even those authorized by Civil Service Law § 50.4 - until the agency determines that it is interested in hiring the individual.

NYS-APP Revision

In furtherance of these laws and policy considerations, the Department of Civil Service (DCS) has revised the examination application, NYS-APP, to remove from the application any requirement that applicants disclose their history of criminal convictions or pending criminal proceedings. Therefore, Question 4 and Question 5 below have been removed from the application in the section titled “Additional Questions for Open-Competitive Applicants Only”:

  1. Do you have an arrest or criminal accusation currently pending against you?
  2. Have you ever been convicted of a criminal offense (felony or misdemeanor)?

Applicants for open-competitive examinations will continue to answer certain questions authorized by Civil Service Law § 50.4, other than those relating to criminal conviction history or pending criminal proceedings. Questions 1-3 below will remain in the application section titled “Additional Questions for Open-Competitive Applicants Only”:

  1. Were you ever discharged from any employment except for lack of work, funds, disability or medical condition?
  2. Did you ever resign from any employment rather than face a dismissal?
  3. Did you ever receive a discharge from the Armed Forces of the United States which was not an “Honorable Discharge” or a “General Discharge under Honorable Conditions”?

These revisions have been made in the online application as well as the PDF version of the application available for candidate use from DCS’ web site. In addition, all special applications available to candidates from our web site have been revised. If your agency has any announced examinations requiring the use of a special application and needs more specific information concerning the status of your agency’s special Examination Application, please contact your Staffing Services Representative.

Candidates must use the new application dated 07/2015 to apply for any future examinations. If your office has any copies of previous versions of State applications, destroy your existing supply of the NYS-APP. If your agency must maintain a supply of paper Examination Applications, you may request a new supply, as follows:

Agencies in need of a supply of paper copies of Examination Applications should send an email to Requesters should enter “Exam Application Order” in the subject line. The body of the email should include:

  1. the name of the person to whom the applications are to be sent;
  2. the number of applications needed; and,
  3. a mailing address where the applications should be sent.

When ordering copies of applications, agencies should allow three weeks for delivery.

Investigations Process

The DCS Investigations Unit shall continue to disqualify passing exam candidates where appropriate, prior to eligible list establishment, based upon information provided in response to questions 1 – 3 on the examination application, and following the due process requirements of Civil Service Law § 50.4.

Until such time that all eligible lists established by DCS disqualify candidates based on responses to questions 1-3 only, eligible lists established will have a list tag in ELMS to reflect that the investigation process has not been completed. Agencies should continue to proceed with the normal list canvass and interview procedures.

Prior to the interview or at the time of interview, a candidate will be asked to complete Part 1 of the new Statewide Employment Application, along with an agency-specific addendum, if necessary, gathering information that relates to the position for which the individual is being considered, to make the interview process more meaningful. However, prior to and during the interview the candidate may not be asked any questions - whether in writing or verbally - regarding the individual’s criminal conviction history and/or pending criminal proceedings.

If the agency is interested in considering the candidate for appointment after the interview, the agency will ask the candidate to complete Part 2 of the Statewide Employment Application, which will include:

  1. Self-disclosure of Criminal History (containing criminal conviction history and outstanding criminal proceedings); and
  2. Authorization for Fingerprinting (only for certain positions).

It will continue to be the agency’s responsibility to handle the fingerprinting process, where appropriate, and subject to the terms of the Use and Dissemination Agreement it has in place with the Division of Criminal Justice Services (“DCJS”). If the candidate and/or the results of a criminal background check performed by DCJS disclose a criminal conviction history and/or pending criminal charges, the agency will give the candidate the opportunity to provide additional information and documentation by sending out the applicable version of the attached letters. After the agency receives any information and/or documentation from the candidate, the agency (with participation of or review by agency’s counsel) will review the individuals’ candidacy for the position and document its analysis, consistent with the requirements of the Correction Law.

New York State Correction Law § 752 provides that no application for employment or employment held by an individual may be denied or acted upon adversely by reason of a criminal conviction unless (1) there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or (2) the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. New York State Correction Law § 753 articulates specific factors, each of which must be considered prior to making an employment decision based upon an individual’s prior criminal conviction(s). Guidance on how to consider these factors is attached.

If the agency decides to hire following its Correction Law §753 analysis, no disqualification or further action is required. However, if the agency decides not to hire based upon the candidate’s conviction history, the matter must be referred to DCS, along with all information and documentation upon which the determination was based, and a request for disqualification. DCS shall provide the agency with instructions and forms with which to request disqualifications. DCS shall review the agency’s analysis, to assess whether or not it concurs with the agency’s determination.

If DCS concurs with the analysis, DCS shall initiate the disqualification (“DQ”) process set forth in Civil Service Law § 50(4), adhering to statutory due process requirements. The candidate will ultimately either be disqualified or will remain on the list following investigation. If DCS does not concur with the analysis, the Agency is advised of deficiencies in its analysis, and invited to re-submit its request for DQ, if the Agency chooses to do so.

Statewide Employment Application

The new Employment Application shall be used in lieu of your agency's existing application, effective July 10, 2015, and will be available to HR Officers at HR Officers, or their designees, are responsible for the appropriate branding and subsequent distribution of the Employment Applications within their agency. To the extent that your agency must collect additional information specific to the agency, an addendum may be used to capture such information. However, this addendum may not ask applicants for employment to provide information regarding Criminal History* and must be reviewed and approved by DCS. Questions regarding the Statewide Employment Application should be directed to your agency’s designated Staffing Services Representative.

* The only exception to this policy is where certain criminal convictions, by law, preclude applicants from employment in the job title at issue, unless a certificate of relief from disabilities, a certificate of good conduct, or an executive pardon is obtained.


Voluntary Disclosure Letter

Background Check Letter

Mandatory Guidelines on the Application of NYS Correction Law Article 23-A