On October 7, 2026, the New York City Commission on Human Rights issued final rules implementing the 2021 amendments to the New York City Fair Chance Act (FCA). The final rules take effect October 30, 2026. Read on to learn more about the FCA’s history, key provisions of the final rules, and how you can prepare for compliance.
Background and History of the FCA
| Date | Development | Key Requirements |
| 2015 | FCA takes effect | ~Prohibits employers from asking about or considering an applicant’s criminal history before making a conditional offer ~Requires employers to provide applicants with their individualized assessment and an opportunity to respond before withdrawing an offer based on criminal conviction history |
| 2021 | FCA amended | ~Extends protections to current employees and pending criminal cases ~Requires employers to apply specific NYC FCA factors to pending cases and convictions occurring during employment ~Broadens protections for non-convictions ~Increases applicants’ response time from 3 to 5 business days |
| October 30, 2026 | Final rules take effect | ~Aligns regulations with 2021 amendments and clarifies requirements ~Revises key definitions ~Clarifies how employers must evaluate criminal history when making employment decisions ~Explains when exceptions and exemptions may apply ~Identifies per se violations ~Eliminates special early resolution for certain Commission-initiated complaints |
Updated Definitions: What Employers Need to Know
The final rules revise and clarify several key definitions governing the FCA, including:
- Pending Case: A criminal accusation or related arrest unresolved by conviction, verdict, plea, or dismissal at the time when a Fair Chance Employment Analysis occurs. Excludes an adjournment in contemplation of dismissal (ACD) unless revoked and the case is restored for prosecution.
- Non-Conviction: Includes ACDs; favorable terminations; youthful offender adjudications; violations in cases no longer pending, even if unsealed; specified sealed convictions; and comparable federal or out-of-state dispositions.
- Fair Chance Employment Analysis: Evaluation of (1) pre-employment convictions under Article 23-A factors; or (2) pre-employment pending cases, or pending cases or convictions that occur during employment under the Fair Chance Employment Factors.
- Adverse Employment Action: Any action negatively affecting terms and conditions of employment, except qualifying leave during the Fair Chance Employment Process.
- Fair Chance Employment Process: The required process before withdrawing a conditional offer of employment or denying a promotion or transfer based on an arrest or conviction, or before taking adverse action against an employee based on a conviction or pending case.
Conditional Offers: Three Permissible Grounds for Withdrawal
The final rules provide that employers may revoke a conditional offer of employment, promotion, or transfer only if the decision is based on:
- A criminal background check conducted in accordance with the New York City Human Rights Law;
- A medical exam permitted under the Americans with Disabilities Act; or
- Other information the employer could not reasonably have known before making the offer that would have caused the employer not to make the offer, regardless of the criminal background check results.
The Five-Business-Day Rule: Pre-Adverse Action Notice and Response Time
The final rules conform the regulations to existing law and guidance requiring a minimum five-business-day response period for individuals to respond to a Fair Chance Employment Notice. Before taking adverse action based on criminal history, an employer must:
- Provide a written copy of both the criminal history inquiry and Fair Chance Employment Analysis supporting its determination;
- Allow at least five business days after receipt of the inquiry and Fair Chance Employment Notice to respond, while holding the position open;
- Consider any information submitted during that period; and
- Timely provide written notice of final decision to take adverse action.
Fair Chance Employment Process: How Long Can an Employee Be Placed on Leave?
The final rules permit an employer to place an employee on paid or unpaid leave while conducting the Fair Chance Employment Process related to a pending case or conviction that occurs during employment, but they establish a rebuttable presumption that a reasonable period of leave will not exceed five business days.
Fair Chance Employment Analysis: Understanding the “Direct Relationship” and
“Unreasonable Risk” Exceptions
The final rules clarify the standard for determining when a conditional offer of employment may be revoked or adverse action may be taken based on the “direct relationship” and “unreasonable risk” exceptions under the Fair Chance Employment Analysis.
- Direct Relationship Exception: An employer must show a direct connection between the alleged conduct underlying a conviction or pending case and the specific job duties and responsibilities. If a connection exists, the employer must evaluate all relevant Fair Chance Employment Factors to determine whether the concerns have been mitigated.
- Unreasonable Risk Exception: An employer must consider and apply all relevant Fair Chance Employment Factors to determine if an unreasonable risk exists. The final rules state that the existence of a conviction or pending case alone generally does not establish an unreasonable risk; and that consideration of the seriousness of an offense alone does not establish compliance with the Fair Chance Analysis.
Per Se Violations: Practices That Can Trigger Liability
The final rules provide a list of per se violations that, standing alone, constitute a violation of the FCA regardless of whether adverse action was taken or actual injury occurred. Unless an exemption applies, these include:
- Pre-offer employment materials that express limitations or restrictions based on an individual’s criminal history or convictions;
- Pre-offer inquiries regarding an applicant’s criminal history, including requests for permission to conduct a background check;
- Pre-offer investigations into an applicant’s criminal history, including those conducted through publicly available information;
- Pre-offer employment forms or applications that refer to criminal history, even if they include a disclaimer or instruction for applicants to skip the question; and
- Prior to an adverse action, an employer’s failure to conduct a new Fair Chance Employment Analysis when an individual identifies a material error in their criminal history.
The final rules do permit:
- Solicitations, advertisements, and publications that encourage individuals with criminal records to apply; and
- Employer responses to applicants’ questions regarding whether criminal background checks will be conducted.
When Another Law Requires Background Checks and Employment Bars
Under the final rules, employers required by federal, state, or local law to conduct a criminal background check or impose an employment bar based on criminal history may, to the extent the applicable exemption allows:
- Inquire about an applicant’s criminal history before extending a conditional offer; or
- Deny employment or take adverse action without conducting the Fair Chance Employment Process to the extent that compliance requires the specific action in relation to the specified criminal history.
Note: If a law requires a background check but does not require the employer to deny employment or take adverse action, the employer still must conduct the Fair Chance Employment Process.
Enforcement Update: Special Early Resolution Eliminated
The final rules eliminate the section regarding early resolution for certain Commission-initiated Fair Chance Employment complaints to align FCA enforcement with other protections under the New York City Human Rights Law and because the FCA has been in effect for a significant period of time.
Employer Takeaways
The final rules underscore the importance of a consistent, individualized, and well-documented approach to employment decisions based on criminal history. Employers should review their screening procedures, train those involved in employment decisions, and confirm that recruiters and background check vendors follow applicable requirements. To prepare for compliance, employers should consider the following:
- Audit hiring materials and screening practices. Review job applications, background check procedures, conditional offer letters, FCA notices, adverse action procedures, and recruiter and third-party background check vendor practices to ensure compliance with the final rules.
- Update notices and response deadlines. Provide the written criminal history inquiry and Fair Chance Employment Notice, allow at least five business days after receipt of both to respond, and hold the position open during that period.
- Document an individualized analysis. Apply the appropriate factors, consider timely supplemental information, conduct a new analysis when a material error is identified, and timely communicate a final adverse decision in writing.
- Monitor employee leave closely. Account for the rebuttable presumption that reasonable leave during the applicable Fair Chance Employment Process will not exceed five business days, and document circumstances supporting additional time.
- Verify exemptions before relying on them. Identify the specific law requiring a background check or employment bar, confirm which actions it requires, and complete all remaining applicable Fair Chance steps.
If you have any questions relating to the final rules, or would like assistance reviewing your screening procedures and practices, please feel free to reach out to the Nukk-Freeman & Cerra Attorney with whom you typically work or call us at 973.665.9100.