Special Handling Jurisdictions for Pre-Adverse and Adverse Action

Important Note: The following is provided for informational purposes. It is not legal advice. Employers should confer with their legal counsel for additional information about their compliance responsibilities with state and local fair chance laws. Verified First disclaims all responsibility for or liability or damages associated with or arising out of the information provided. 

In addition to providing a pre-adverse action notice, which includes a copy of the background check report and the FCRA Summary of Rights, and an adverse action notice, notices must contain additional information if the decision is based on criminal history. 

Note that all pre-adverse (preliminary determination) notices should include a deadline for the applicant to respond before the employer makes a final decision. This is at least five business days (except for Prince George’s County (MD) or Montgomery County (MD), which are seven days). (Note that California and unincorporated areas of Los Angeles County measure the five business days from the day the applicant “receives” the letter, with date of receipt presumed based on manner of delivery. Please confer with counsel for more information about California’s deadline requirements).

• New York City – The pre-adverse action notice must include an Individualized Assessment Form to be filled out and provided to the individual if the employer is considering rejecting an applicant or terminating an employee because of their criminal history. The form can be found here.
  • The NYC Fair Chance Act Notice informs the individual that their criminal record has been checked and may lead to the job offer being retracted or their employment being terminated.
  • The form invites the individual to provide additional information to help the employer make an employment decision. Applicants and employees can correct errors on their criminal record or provide other relevant information.
  • The document shows the factors that must be considered as per Article 23-A of the New York State Correction Law.
  • After considering these factors, the employer may deny the job or terminate employment if they believe there's a direct relationship between the criminal record and the job, or if the record creates an unreasonable risk to persons, the public, or property.
• California – The pre-adverse action (preliminary determination) notice must identify the specific criminal history items that are potentially disqualifying, the deadline to respond, including that the applicant or employee will be given additional time if they advise of intent to obtain evidence of inaccuracy, and a statement that the applicant or employee can provide evidence challenging the accuracy of the report, mitigating circumstances or rehabilitation. The adverse action (final determination) notice must identify the specific criminal history items that are disqualifying and advise applicants or employees of their right to contest the decision by filing a complaint with the California Civil Rights Department. 
• City of Los Angeles (CA) – In addition to California, requires an Individualized Assessment Form to be filled out and provided to the applicant with the pre-adverse action notice. The form can be found here.
  • The form shows the factors that employers must consider. 
  • If the employer is considering rescinding an offer after considering these factors, the employer must describe the link between the applicant's criminal history and risks inherent in the job duties.
  • If the applicant provides additional information for the employer to consider, the form also includes a section for reassessment, which should be completed and provided to the applicant with the adverse action notice (if the employer moves forward with the adverse decision). 
• Los Angeles County (unincorporated areas) – In addition to California, requires an Initial Individualized Assessment Form to be filled out and provided to the applicant with the pre-adverse action (preliminary determination) notice. The form can be found here.
  • The form shows the factors that employers must consider. 
  • If the employer is considering rescinding an offer after considering these factors, the employer must describe the link between the applicant's criminal history and risks inherent in the job duties.
  • If the applicant provides additional information for the employer to consider, employers must provide the applicant with a Second Individualized Assessment Form, which should be completed and provided to the applicant with the adverse action (final determination) notice (if the employer moves forward with the adverse decision). The form can be found here. The adverse action (final determination) notice must advise applicants of their right to contest the decision by filing a complaint with the California Civil Rights Department and the Los Angeles County Department of Consumer and Business Affairs.
• San Diego County (unincorporated areas) – In addition to California, requires the pre-adverse action (preliminary determination) notice to advise applicants of the right to file a complaint with the California Civil Rights Department and the San Diego Office of Labor Standards and Enforcement. 
• Georgia – In the adverse action notice, must advise that criminal history information was obtained from the Georgia Crime Information Center and identify the specific criminal history items that are disqualifying.
• Illinois – In the pre-adverse action notice, must identify specific criminal history items that are potentially disqualifying and the reasoning behind why the item(s) are substantially job related and/or present an unreasonable risk to property/safety/welfare of specific individuals or the general public. Must do the same in the adverse action notice. The adverse action notice must also advise of the right to file a complaint with the Illinois Department of Human Rights (for Chicago applicants, the Chicago Commission on Human Relations).
• Massachusetts - Must identify specific criminal history items in the pre-adverse action notice and include a copy of the criminal record information policy.
• New York State – Must include a copy of Article 23-A of the New York Correction Law.
• Seattle (WA) - Must identify specific criminal history items in the pre-adverse action notice and the adverse action notice.
• Montgomery County (MD) - Must identify specific criminal history items in the pre-adverse action notice and the adverse action notice.
• Prince George’s County (MD) - Must identify specific criminal history items in the pre-adverse action notice and the adverse action notice.
• Philadelphia (PA) - Must identify specific criminal history items in the pre-adverse notice and adverse action notice. The adverse action notice also must include another copy of the criminal history report and a statement of the applicant’s right to dispute the information within 10 business days. Please review here for additional information.
• Gainesville (FL) - Must identify specific criminal history items in the pre-adverse action notice and the adverse action notice. The adverse action notice also must include a city notice regarding the ordinance. 
• Erie County (PA) - Must identify specific criminal history items in the pre-adverse notice and adverse action notice. The adverse action notice also must include another copy of the criminal history report and a statement of the applicant’s right to dispute the information within 10 business days.
• Austin (TX) - Must identify specific criminal history items in the adverse action notice.
• Portland (OR) - Must identify specific criminal history items in the adverse action notice.

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