New York City Fair Chance Act for employers (2026): when you can ask and the Fair Chance Process

The New York City Fair Chance Act, part of the city's Human Rights Law at Administrative Code section 8-107(10), (11) and (11-a), bars employers with four or more employees, employment agencies and their agents from asking about or searching for an applicant's criminal history until after a conditional offer, and from mentioning it in job ads, including "background check required." If the employer then wants to withdraw the offer because of a conviction or pending case, it must follow the Fair Chance Process: a written copy of everything it relied on, a written Fair Chance Analysis on the Commission's Fair Chance Notice or an equivalent, and at least five business days to respond with the job held open. As of November 2026, the Commission on Human Rights' amended rules at 47 RCNY 2-04, in force since October 30, 2026, spell out each step and every per se violation.

Where is the Fair Chance Act in the city code?

The Fair Chance Act is not a separate statute. It is three subdivisions of section 8-107 of the Administrative Code:

• 8-107(11-a), the timing and process rule: no ads, statements or inquiries about arrests or convictions before a conditional offer, and the Fair Chance Process before any adverse action after it.
• 8-107(10), the substantive rule: no adverse action over a conviction that breaks Correction Law Article 23-A, and no adverse action over a pending case, or a conviction during employment, unless the employer finds a direct relationship or an unreasonable risk after weighing the city's fair chance factors.
• 8-107(11), the never-consider rule for non-convictions such as dismissed cases, youthful offender findings and unsealed violations.

The dates that matter:

• October 27, 2015: the Fair Chance Act was added to the Human Rights Law, according to the Commission's guidance.
• July 29, 2021: Local Law 4 of 2021 took effect. It extended the process to current employees and pending cases, protected unsealed violations and non-criminal offenses, and set the response time at five business days.
• October 30, 2026: the Commission's amended rules took effect. They were adopted on September 15, 2026 (rule record and adopted text). The rules now match the 2021 law, add detail on per se violations, errors and exemptions, and drop the early resolution settlement option for Commission-initiated fair chance complaints.

The Commission's guidance PDF still carries its 2021 and 2022 dates, so where it and the October 2026 rules differ, follow the rules.

Which employers, agencies and jobs are covered?

• Employers with four or more people. Under the definition in section 8-102 (the Commission's text of Title 8), only an employer that had fewer than four people in its employ at all times, from twelve months before the violation through its end, is left out. Independent contractors working in the business count, and so do the employer's parent, spouse, domestic partner or child if employed. The Commission's fact sheet for employers adds that the owner counts and the four need not work in one place, as long as one of them works in the city.
• Employment agencies and agents. Subdivision 11-a applies to "any employer, employment agency or agent thereof," so staffing firms, search firms and background check companies acting for the employer are inside it.
• Who is protected. Job applicants, current employees seeking a promotion or transfer (the rules count them as applicants), employees, and, under section 8-107(23), interns, freelancers and independent contractors. Households hiring domestic workers are the exception: 8-107(23) says subdivisions 10 and 11-a do not apply to them.
• Candidates who live elsewhere. In Syeed v. Bloomberg L.P. (March 14, 2024), the Court of Appeals held that the city and state Human Rights Laws protect nonresidents who sought an actual New York City-based job. For a fully remote role with no city base, ask counsel.

What is off limits before a conditional offer?

The rules at 47 RCNY 2-04(a) list these as per se violations, which means they break the law even if nobody is rejected:

• Any limitation about criminal history in ads, applications, flyers or job fair pitches, including "no felonies," "background check required" and unsolicited statements about background checks. The guidance adds that a neutral line about following the Fair Chance Act is also out.
• Asking about criminal history, asking permission to run a background check, or saying one will be run.
• Searching for it yourself or through a third party: public records, background check companies, or the internet. The rule names searches for "arrest," "mugshot," "warrant," "criminal," "conviction," "jail" or "prison" with an applicant's name.
• Using application forms that ask or refer to criminal history, even with a disclaimer or a "you may skip this" note.
• Disqualifying an applicant for refusing to answer a prohibited question, which 8-107(11-a)(f) protects.

What stays allowed: ads that encourage people with criminal histories to apply; telling an applicant who asks that any check happens only after a conditional offer; reference, education and licence checks; a general search of the applicant's name that is not aimed at criminal history; and, under 2-04(k), having applicants fill in IRS Form 8850 and Labor Department Form 9061 before the offer if the answers are used only to claim the Work Opportunity Tax Credit. If a candidate volunteers a record, 2-04(c) says the disclosure alone does not create liability; exploring it further, or letting it affect the offer, does. Move the conversation on and keep it out of your notes and submittals (see what not to write in interview notes).

What counts as a conditional offer?

A conditional offer of employment, promotion or transfer may be revoked only for three reasons: the results of a criminal background check run under the Human Rights Law, a medical exam the ADA permits, or other information the employer could not reasonably have known before the offer, if it proves it would not have made the offer anyway. The guidance treats the offer as the last step: every non-criminal check, including references and academic records, should be done first. Employers that order consumer reports should get the non-criminal part before the offer and the criminal part after, or wall the criminal results off from decision makers until the offer is made. Driving abstracts mix criminal and non-criminal entries, so the guidance says to review them only after the offer.

What can never be asked about or used?

Under 8-107(11) and the definition of "non-conviction" in 47 RCNY 2-01, no private employer may ask about or act on: a case adjourned in contemplation of dismissal (unless the order is revoked and the case restored to the calendar), a case that ended in the person's favor even if not sealed, a youthful offender adjudication, a conviction for a violation such as disorderly conduct even if not sealed, a non-criminal offense under another state's law, or a conviction sealed under Criminal Procedure Law 160.58 or 160.59. Because 8-107(11)(a) incorporates Executive Law 296(16), convictions sealed under the state's automatic sealing provision, CPL 160.57, are covered too. Narrow exceptions apply to police, peace officer and law enforcement agency jobs and to legal bars to employment.

After the offer, ask only about what you may consider. A question you can adapt (our wording, built from the rule): "Have you been convicted of a misdemeanor or felony, or do you have a criminal case pending? Do not include cases that were dismissed, sealed, adjourned in contemplation of dismissal, resolved as a violation or a youthful offender or juvenile matter, or ended in your favor." The Commission's guidance contains its own sample question.

What are the steps of the Fair Chance Process?

If the background check does not change your mind, hire; 2-04(d) says no analysis is needed. If you are considering withdrawing the offer because of a conviction or pending case, follow 8-107(11-a)(b) and 47 RCNY 2-04(e):

1. Ask the candidate for information about the relevant factors, such as evidence of rehabilitation, before you analyze. The rule says the request must be affirmative.
2. Run the Fair Chance Analysis. Use the Article 23-A factors for convictions before employment and the New York City Fair Chance Factors for pending cases: the city's policy against stigma and unnecessary exclusion, the job's specific duties, the bearing of the offense on those duties, whether the person was 25 or younger at the time (a mitigating factor), seriousness, the employer's legitimate interest in safety and property, and evidence of rehabilitation or good conduct, including work history. You may withdraw only on a properly supported direct relationship or unreasonable risk; seriousness alone does not establish risk, and you may not change the job's duties after learning of a record.
3. Give a written copy of the inquiry: every piece of information you relied on, with the date and time you accessed it. That means the consumer report, printouts of web pages showing their source, copies of public records, and a written summary of anything said orally, including by the candidate.
4. Give the written analysis on the Commission's Fair Chance Notice (last updated June 23, 2021, per the Commission's Fair Chance page) or a comparable notice. It must give specific facts for each factor (for time elapsed, the years and months), explain the direct relationship or risk, and say how and by when to respond. Boilerplate that only lists the factors violates the law.
5. Wait at least five business days from the candidate's receipt of both documents, and do not permanently fill the job meanwhile. Notices may go by email if you and the candidate agreed to that in advance.
6. Consider what the candidate sends. If they show an error that is material, redo the analysis on the corrected record and repeat the process. If the record turns out to be a non-conviction or not theirs, you may not withdraw on it.
7. Tell the candidate the final decision in writing, within a reasonable time. You may, but need not, offer another open position that resolves the concern.

If you think the candidate intentionally misrepresented a conviction or pending case, 8-107(10)(g) still requires giving them the information you relied on and a reasonable time to respond, which the rules set at five business days or more.

What changed for current employees?

Since Local Law 4 of 2021, an employer may not discipline or fire an employee over a pending case, or a conviction that occurs during employment, without the analysis under the city factors, a written copy of it, and at least five business days for the employee to respond (8-107(10)(b)-(c) and (11-a)(c)). The employer may place the employee on paid or unpaid leave meanwhile; under 2-04(e)(1)(vii) a reasonable time is presumed not to exceed five business days.

Which jobs are exempt?

• Police and peace officer positions, which are outside these protections, and other law enforcement agency jobs, which keep protection only for some non-convictions (8-107(11-a)(g)(1)).
• City positions designated by the Department of Citywide Administrative Services; a person rejected for one must still get the written analysis.
• Jobs where a law requires a background check: the check may run before the offer, but unless the law requires rejection you still run the full Fair Chance Process, and the ad still may not say "background check required" unless a law requires that wording. The guidance asks employers to tell applicants the legal basis.
• Jobs where a law bars people with specific convictions: you may ask about those offenses only and reject on them without the analysis, unless a pardon or certificate has removed the bar.

For both of the last two exemptions, the rules of a self-regulatory organization count as federal law, so they can reach a securities firm's regulated staff, but not its other roles.

Exemptions are read narrowly, apply position by position, and the employer must prove them. The guidance recommends keeping an exemption log for three years.

Staffing agencies and recruiters: who does what?

• Temporary help firms may ask only after offering to place the applicant in their labor pool, which counts as the conditional offer, and must run the Fair Chance Process before dropping someone from the pool, judging only the basic skills the pool needs (2-04(f)).
• The client may not ask about a temporary worker's record until the worker is assigned to it, and must run its own Fair Chance Process to decline the worker.
• Referrals. A firm may not refer only people without records, or with "less serious" records, because a client asks; that is aiding and abetting. It may not pass a worker's criminal history to a client until the client has made a conditional offer.
• Direct-hire and search recruiters act as the employer's agent: no questions, searches or "clean record" lines until the client has extended a conditional offer.
• Who sends what. The party that wants to take the adverse action sends the inquiry copy and the Fair Chance Notice and waits the five business days. Whoever ordered the consumer report also owes the federal FCRA notices. Settle both in the client agreement.

What are the penalties, and who enforces it?

The Commission on Human Rights' Law Enforcement Bureau enforces the law against private employers, and individuals may also sue. The guidance says a complaint may be filed with the Commission within one year or in state court within three years. Under section 8-126 the Commission may impose civil penalties of up to $125,000, or up to $250,000 where the violation was willful, wanton or malicious, on top of remedies such as back pay, front pay and emotional distress damages. Revoking an offer after a check without the process creates a rebuttable presumption that the record was the reason (2-04(i)). Since October 30, 2026, the rules no longer offer the fixed-fine early resolution option for these complaints.

How does it fit with state law, the FCRA and federal law?

The statewide rules on Article 23-A, sealed and dismissed matters and the copy of Article 23-A owed with a background report still apply in the city on top of all this; they are on our New York ban-the-box page. The city law is stricter on timing, because the state sets no stage for the question, and it must be read independently, with state and federal law as a floor rather than a ceiling (section 8-130). If a screening company prepares the report, the FCRA also applies: written authorization (after the offer, in the city), then a pre-adverse action notice with the report and the summary of rights, sent with the Fair Chance Notice, and a final notice after the five business days (FCRA background check process). The report may not include credit history, which the city bars for most jobs (credit check laws). The EEOC rescinded its 2012 arrest and conviction records guidance on October 28, 2026; that changes nothing in the city law, and Title VII still applies.

For the other New York ordinances, see Buffalo's ban-the-box law and Rochester's, which set earlier, interview-based timing.

Template: email to send with the Fair Chance Notice

An example to adapt; fill the brackets and attach both documents.

Subject: Your conditional offer for [job title]: information we received and your right to respond

Dear [name],

After our conditional offer of [date], we received the attached [background report from (company) / records]. We have concerns about [conviction or pending case] and have not made a final decision. Attached are (1) a complete copy of the information we relied on, with the date and time we accessed it, and (2) our written Fair Chance Analysis on the Fair Chance Notice.

You have until [date, at least five business days after you receive this email] to respond. You can point out errors in the record and send anything you would like us to consider, such as evidence of rehabilitation, work history, training or letters of support. Please contact [name, phone, email]. We will keep the position open until then and will tell you our decision in writing.

[Name, title, company]

NYC Fair Chance Act at a glance

For the general scripts used across states, see ban-the-box laws and interview questions, and for a company-wide process, the fair chance hiring policy template.