NYC Fair Chance Act Rules Get a Refresh: What Employers Need to Know Before October 30

Seyfarth Synopsis: New York City employers should take another look at their criminal background check practices. The New York City Commission on Human Rights has adopted amended rules implementing the 2021 amendments to the City’s Fair Chance Act, effective October 30, 2026. The amended rules incorporate the statutory amendments into the regulatory framework and provide additional guidance concerning the Fair Chance Employment Process, per se violations, errors and discrepancies in criminal-history information, and applicable exemptions.

The New York City Commission on Human Rights (the “Commission”) has adopted long-awaited amendments to the rules implementing New York City’s Fair Chance Act (“FCA”). The amended rules take effect on October 30, 2026.

As we previously reported, the 2021 amendments significantly expanded the FCA, including by extending protections to certain current employees, addressing pending criminal cases and additional categories of criminal-history information, and increasing the time afforded to applicants during the Fair Chance Process. The amended rules incorporate those statutory changes into the regulatory framework while providing additional detail regarding how employers must navigate criminal-history information in practice.

For employers, several aspects of the amended rules warrant particular attention.

The Fair Chance Process Gets a More Detailed Roadmap

The amended rules clarify which factors employers must apply when evaluating criminal history. Employers must use the Article 23-A factors to evaluate an applicant’s or employee’s convictions that occurred before employment began. The New York City Fair Chance Employment Factors apply to an applicant’s pending cases and a current employee’s pending cases or convictions occurring during employment.

Before performing the Fair Chance Employment Analysis, an employer must affirmatively request information from the applicant or employee relating to the applicable factors. If the employer determines that the direct-relationship or unreasonable-risk exception applies and intends to take adverse action, the employer must provide the individual with the criminal-history information on which it relied, its written Fair Chance Employment Analysis, and a reasonable period of at least five business days to respond.

Importantly, the response period begins only after the individual receives both the Fair Chance Employment Notice and the written copy of the criminal-history inquiry. Five business days is a minimum, not necessarily a maximum. Depending on the circumstances, an employer may need to provide additional time.

During the response period, the employer may not permanently place another person in the prospective or current position. If the individual timely provides additional information relating to the applicable factors, the employer must consider it before proceeding with adverse action. If the employer proceeds with an adverse decision after considering the additional information, it must timely communicate that decision in writing.

The rules also provide additional guidance concerning direct relationship and unreasonable risk. A direct-relationship determination requires a connection between the underlying criminal conduct and specific duties and responsibilities of the position, followed by consideration of the applicable Fair Chance factors. Similarly, the existence of a conviction or pending case alone generally does not establish an unreasonable risk, and the seriousness of an offense, standing alone, is not sufficient without consideration of the other applicable factors.

The Rules Identify Per Se Violations

One of the more significant features of the amended rules is their identification of specific conduct that constitutes a per se violation of the FCA. These include:

• Making prohibited pre-offer inquiries or statements about criminal history, including asking an applicant about criminal history, requesting authorization to conduct a criminal background check, or making unsolicited statements concerning criminal background checks.
• Searching for an applicant’s criminal history before a conditional offer, including through public records, websites, private databases, or other sources.
• Using pre-offer applications or forms that request or reference criminal-history information, even if the form contains a disclaimer directing applicants not to answer the question, unless another federal, state, or local law requires the language.
• Failing to provide the required Fair Chance materials when contemplating adverse action based on covered criminal history.
• Failing to provide the required response period before taking adverse action.
• Failing, in the circumstances specified by the rules, to consider additional information timely submitted by the applicant or employee during the Fair Chance Employment Process.
• Failing to conduct a new Fair Chance Employment Analysis before taking adverse action when an applicant or employee identifies a material error in the criminal-history information used in the employer’s analysis.

Employers may, however, encourage individuals with criminal records to apply for employment and may respond when applicants ask whether the employer conducts criminal-history checks.

These provisions reinforce an important point for employers: compliance with the Fair Chance Employment Process matters independently of the ultimate employment decision. Employers should therefore review not only who makes criminal-history decisions, but also the forms, notices, timing, and procedures used throughout the process.

Errors, Discrepancies, and Alleged Misrepresentations

The amended rules also provide additional direction when the accuracy of criminal-history information is called into question.

If an applicant or employee identifies an error in the criminal-history information that is material to the employer’s analysis, such as an incorrect disposition or the erroneous inclusion of a pending case or conviction, the employer must conduct a new Fair Chance Employment Analysis before proceeding with adverse action.

The rules separately address situations in which the employer believes an individual intentionally misrepresented their criminal history. Before taking adverse action based on an intentional misrepresentation, an employer must provide the individual with the information supporting its determination, afford a reasonable period of at least five business days to respond, and consider that response.

Significantly, a discrepancy between a criminal background report and an individual’s self-reported history does not necessarily establish an intentional misrepresentation. Employers therefore should not automatically treat inconsistencies as evidence of dishonesty.

Current Employees Receive Fair Chance Protections Too

The amended rules also implement the FCA’s expanded protections for current employees when a pending case or conviction arises during employment.

While conducting the required Fair Chance Employment Process, an employer may place an employee on paid or unpaid leave for a reasonable period. The rules establish a rebuttable presumption that a reasonable period does not exceed five business days. Although the presumption is not an absolute cap, employers should carefully consider longer periods of leave.

Current employees must also receive the applicable Fair Chance Employment Process before covered criminal history results in adverse action, including an opportunity to provide information relevant to the applicable Fair Chance factors.

Exemptions Remain Narrow

Employers in regulated industries should pay particular attention to the amended rules addressing federal, state, and local laws that require criminal background checks or prohibit employment based on specified criminal history.

The exemptions apply only to the extent another law actually requires the particular action at issue. For example, if another law requires an employer to conduct a criminal background check but does not require the employer to reject an individual based on its results, the background-check mandate does not by itself excuse the employer from otherwise applicable Fair Chance requirements before taking adverse action.

Likewise, where another law requires an employment bar based on particular criminal history, the exemption applies to the position, criminal history, and employment action covered by that mandate. Employment decisions beyond what the law requires remain subject to otherwise applicable FCA requirements.

Employers also should not assume that a legally required background check permits them to advertise that a background check is required. The amended rules generally prohibit such language unless another law expressly requires the statement.

What Should Employers Do Now?

With the October 30, 2026 effective date fast approaching, employers with New York City operations should consider taking the following steps:

• Review applications, advertisements, and hiring materials to ensure they do not prematurely request or reference criminal-history information. Employers using multistate forms should pay particular attention to criminal-history questions accompanied only by jurisdictional disclaimers.
• Review the sequencing of background checks to ensure criminal-history inquiries occur at the appropriate stage in the hiring process.
• Update Fair Chance procedures and notices to address the minimum five-business-day response period, consideration of additional information, and written communication of final adverse decisions.
• Establish procedures for disputed criminal-history information so that material errors trigger a new Fair Chance Employment Analysis when required.
• Review procedures involving alleged misrepresentations and avoid treating discrepancies in criminal-history information as automatically establishing dishonesty.
• Review procedures for current employees, including the handling of pending cases or convictions arising during employment and the use of paid or unpaid leave.
• Reevaluate positions treated as exempt to confirm that the particular law or regulatory mandate actually supports the background check or employment action at issue.
• Train recruiters, hiring managers, HR personnel, and background-screening teams on prohibited pre-offer inquiries and the procedural requirements of the Fair Chance Employment Process.

New York City’s Fair Chance requirements remain among the nation’s more detailed restrictions on employers’ consideration of criminal history. Although many of the amended rules implement obligations established by the 2021 amendments or reflected in prior Commission guidance, the rules provide important regulatory detail concerning what employers must do, when they must do it, and which procedural failures may independently violate the FCA. Employers should use the October 30, 2026 effective date as an opportunity to review their background-screening practices for compliance with the final rules.