New York City’s Fair Chance Act has long limited when and how employers can look into a job applicant’s criminal history. On October 30, 2026, a revised set of rules from the NYC Commission on Human Rights took effect. Much of it formalizes requirements that have been in place since the Act was expanded in 2021, but the details matter, and several of them are easy to trip over. The Act covers employers with four or more employees, so even smaller organizations are included. If you hire in New York City, now is the time to check your process against the new rules.
The Basic Framework Is Still the Same
Most NYC employers still cannot ask about, or search for, an applicant’s criminal history until after making a conditional job offer. If a background check turns up something concerning, the employer has to follow a specific process before pulling the offer: a written individualized assessment, a written Fair Chance notice, and a real opportunity for the applicant to respond. A conditional offer can only be withdrawn for limited reasons, so a background check cannot become a catch-all excuse.
More Time to Respond
The minimum response window for applicants has increased from three to five business days. The clock starts once the person has received the required notice and a copy of the criminal history information, and employers should expect to keep the position open during that time. Build the extra days into your hiring timeline now so a rushed start date does not push someone into a violation.
Current Employees Are Covered Too
The process now expressly applies when an existing employee is charged with, or convicted of, something while employed. An employer may place the employee on a short leave during its assessment, and the rules presume that five business days is reasonable. Anything longer is presumed to be an adverse action.
Clearer Definitions, Clearer Traps
The rules spell out terms like “pending case,” “non-conviction,” and “conditional offer.” For example, an adjournment in contemplation of dismissal is generally treated as a non-conviction rather than a pending case. Employers also generally cannot seek or consider non-conviction information at all unless another law requires it.
Two mistakes are now listed as violations on their own, with no need to show anyone was actually harmed:
- Using an application or form that asks about or refers to criminal history before a conditional offer, even if it tells applicants to skip the question.
- Taking adverse action without redoing the analysis after an applicant points out a material error in the criminal history information.
Accusing Someone of Lying
A mismatch between what an applicant reported and what a background check shows does not automatically mean the person lied. Before acting on an alleged intentional misrepresentation, the employer must share the supporting information, give at least five business days to respond, and consider what the person says.
A Conviction Alone Is Not Enough
An employer relying on a “direct relationship” or “unreasonable risk” rationale has to connect the conduct to the specific duties of the job and weigh the required factors, such as how long ago the conduct occurred, the person’s age at the time, and evidence of rehabilitation. A conviction or pending case by itself generally does not establish an unreasonable risk.
Job Postings and Enforcement
Job ads may encourage people with records to apply, but they generally should not say that a background check is required unless a law requires that statement. On enforcement, the Commission eliminated its early resolution program, which had let smaller employers settle Commission-initiated complaints by admitting liability and paying a set penalty. That shortcut is gone.
Don’t Read the Federal News as a Loosening
On October 28, 2026, the EEOC voted to withdraw its 2012 guidance on arrest and conviction records. That does not change Title VII, the Fair Credit Reporting Act, or state and local laws like New York City’s, which remain fully in force. If anything, local rules now carry more of the weight.
Takeaway
Review your applications, postings, and background check procedures for pre-offer criminal history language, keep the timing and documentation requirements straight, and make sure the recruiters and managers who make these calls understand the rules. A short audit now is far easier than defending a complaint later. If you would like help reviewing your process, give us a call.