NYC Fair Chance Act Rules: 2026 Employer Update

New York City employers should take a fresh look at how they use and evaluate criminal history in hiring and employment decisions. Updated regulations adopting the 2021 amendments to the New York City Fair Chance Act take effect October 30, 2026. The amended rules provide some new guidance and incorporate statutory changes and Commission guidance in place since 2021. The final rules also clarify employer procedures, identify specific conduct that constitutes per se violations, and eliminate the early resolution process for Commission-initiated complaints.

The practical takeaway: compliance depends not only on the hiring decision itself, but also on what criminal information is considered, how it is assessed, and how an individual can respond before a decision is made.

What the updated NYC Fair Chance Act rules reinforce

The Fair Chance Act generally requires a two-stage process. Employers first complete noncriminal screening and determine whether the person is qualified. After extending a conditional offer, they may request criminal history, including motor vehicle records that may contain criminal information.

The update adopts the rules that were created under the 2021 amendments to the NYC Fair Chance Act (FCA), which provided expanded protections extending to certain current employees, addressed how to handle pending cases, included additional categories of criminal history information, and increased the time provided to applicants during the FCA process.

The rules clarify which factors must be applied when evaluating the criminal history of an applicant and an employee:

• Convictions that occurred before employment began must be evaluated using the factors in New York Correction Law Article 23-A.
• The New York City Fair Chance Employment Factors apply to an applicant’s pending cases and to a current employee’s pending cases or convictions that occur during employment.
• Protected non-convictions generally cannot be considered. Examples include dismissed cases, adjournments in contemplation of dismissal, youthful offender adjudications, certain violations, and sealed matters.

The Commission’s rule makes it clear that employers are required to request additional information from the applicant relating to the applicable factors, and the employer may consider adverse action only if the employer finds a direct relationship to the job or an unreasonable risk. Before taking adverse action based on covered criminal history, employers must complete the required assessment and provide the individual with the criminal-history information relied upon and the written Fair Chance Employment Analysis. The individual must then receive a reasonable period of at least five business days to respond. The response period begins only after both items are received, and additional time may be required depending on the circumstances.

Compliance checkpoint

Confirm that criminal history is not requested or made available to decision makers before the conditional-offer stage of the process.

Six areas employers should review

1. Pre-offer inquiries

   Before a conditional offer, employers should not ask about criminal history, run a criminal background check, or request authorization for one. Applications and other hiring materials also should not include criminal-history questions, even when applicants are told not to answer them.

2. Self-reported information

   A difference between self-reported history and a background check result does not automatically establish intentional misrepresentation. Before taking adverse action on that basis, employers should provide supporting information and the required opportunity to respond.

3. Corrected or disputed records

   If an applicant or employee identifies a material error in criminal history being considered, the employer must conduct a new individualized assessment before adverse action. Timely information relevant to the applicable factors must also be considered.

4. Job-specific assessments

   Employers should evaluate the relationship between the conduct and the specific duties of the role. A conviction or pending case by itself generally does not establish a direct relationship or unreasonable risk.

5. Current employees

   The Fair Chance Employment Process also applies to current employees whose pending cases or convictions arise during employment. Employers should ensure their review and adverse action procedures address these situations, not only applicant screening.

6. Enforcement exposure

   The New York City Commission on Human Rights removed its early resolution process for complaints it initiates, making documented, consistent processes especially important.

Practical next steps for employers

Employers with New York City hiring or employment activity should review the full rules with legal counsel and evaluate whether their policies, forms, technology, and decision-making workflows operate as intended. Priority checks include:

• Confirming noncriminal screening is completed before criminal history is requested or reviewed.
• Removing pre-offer criminal history questions from applications and related materials.
• Verifying that protected non-convictions are excluded from employment decisions.
• Requiring additional information from the candidate or employee to assess if criminal history has a direct relationship to the job or presents an unreasonable risk.
• Before taking adverse action, providing the criminal-history information relied upon and the written Fair Chance Employment Analysis, followed by a reasonable response period of at least five business days.
• Keeping the position open during the response period rather than permanently filling it.
• Building a documented process for disputes, corrected records, and timely candidate or employee information.

First Advantage provides background screening services and resources to help customers stay informed about regulatory developments. Contact us to talk with our experts. Employers should work with qualified legal counsel to determine how the rules apply to their organization and remain responsible for their employment decisions.

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