New York City Adopts Revised Fair Chance Act Rules Effective October 30, by Keith J. Gutstein, Esq., and Joseph Farneti, Esq., 10-29-2026

New York City employers should review their hiring and criminal background screening procedures ahead of revised Fair Chance Act regulations taking effect October 30, 2026.

The New York City Commission on Human Rights (NYCCHR) has adopted final rules that largely incorporate statutory amendments effective in 2021 and clarify existing requirements for considering criminal history in employment decisions.

The Fair Chance Act generally prohibits covered employers from inquiring about an applicant’s criminal history before making a conditional offer of employment. Employers considering withdrawing an offer or taking other adverse employment action based on criminal history generally must conduct an individualized assessment and follow specific notice and response procedures before making a final decision.

Key Provisions of the Revised Rules

Protections for current employees and pending criminal cases
The regulations incorporate existing protections for current employees, including those with pending criminal cases or convictions arising during employment. Convictions predating employment generally must be evaluated under Article 23-A of the New York Correction Law, while pending cases and convictions occurring during employment are evaluated under the New York City Fair Chance Employment Factors.

Subject to limited exceptions, employers may not inquire about or take adverse action based on protected non-conviction information, including certain sealed convictions, youthful offender adjudications, violations even if unsealed, and qualifying adjournments in contemplation of dismissal.

The rules also clarify that employers may place current employees on paid or unpaid leave for a reasonable period during the Fair Chance Employment Process involving a pending case or conviction arising during employment. There is a rebuttable presumption that a reasonable period of leave does not exceed five business days, meaning an employer may need to justify a longer period.

Individualized assessment and notice requirements
Employers considering adverse action based on criminal history must request relevant information from the applicant or employee and conduct an individualized assessment using the applicable statutory factors.

Before taking adverse action, employers generally must provide a written copy of the criminal history inquiry and a Fair Chance Employment Notice or comparable notice explaining their analysis, and allow a reasonable period of at least five business days after receipt of both to respond. Employers must refrain from permanently filling the applicant’s or employee’s prospective or current position during that period, consider timely submitted information and communicate any final adverse decision promptly in writing.

A new assessment is required before taking adverse action if the individual identifies an error in their criminal history that is material to the assessment.

Direct relationship and unreasonable risk exceptions
An employer relying on the direct relationship exception must identify a direct connection between the conduct underlying the conviction or pending case and the position’s specific duties and responsibilities, and consider whether the applicable statutory factors, including evidence of rehabilitation or good conduct, mitigate the concerns.

Similarly, an unreasonable risk determination requires individualized consideration of the applicable factors. The existence or seriousness of a criminal record alone is insufficient.

Intentional misrepresentation of criminal history
Before taking adverse action based on an alleged intentional misrepresentation about criminal history, employers must provide the individual with the information supporting that determination and allow a reasonable period of at least five business days after receipt to respond. Employers must consider the individual’s response before making a final decision.

A discrepancy between an individual’s disclosure and a background report does not automatically establish intentional misrepresentation. Employers also cannot penalize individuals for failing to disclose protected criminal history information.

Per se violations and enforcement changes
The regulations identify certain practices as per se violations, meaning they can violate the Fair Chance Act even without an adverse employment decision or demonstrated injury. These include prohibited pre-offer criminal history inquiries, improper application materials and certain failures to comply with individualized assessment procedures.

The rules also eliminate the Commission’s early resolution process for Commission-initiated Fair Chance Act complaints, previously available to certain smaller employers.

What Employers Should Know
New York City employers should review their background screening practices, employment applications and Fair Chance Act notices to ensure compliance with the revised regulations. Particular attention should be given to the timing of criminal history inquiries, individualized assessments, response periods and procedures involving current employees.

Although many provisions reflect obligations already in effect, the revised rules provide additional regulatory guidance and reinforce the importance of consistent, well-documented compliance procedures.

Authors:
Keith Gutstein
Chair of KD’s Labor and Employment Law Practice Group and Co-Managing Partner of the Long Island office

Joseph Farneti
Associate