New York City Fair Chance Act: Process, Rights, and Remedies

The New York City Fair Chance Act bars most employers in the city from asking about your criminal history until after they have made you a conditional job offer, and it forces them to follow a written, step-by-step process before they can pull that offer based on what a background check turns up. The law is part of the NYC Human Rights Law, and since 2021 it has also protected people who are already employed when an arrest or conviction comes up. If you have a record and you’re job hunting or working in the five boroughs, this is the rulebook.

Who the Law Covers

The Act applies to any employer with four or more workers. That count includes the owner’s spouse, parent, or child if they work for the business, and it counts independent contractors who perform work in furtherance of the employer’s operations.¹ The four workers don’t need to share a single office, but at least one must perform duties within the five boroughs.

On the worker side, protections reach anyone applying for a position, whether full-time, part-time, seasonal, or temporary. Interns, freelancers, and independent contractors all qualify.² Temporary staffing agencies are covered too. For a temp agency, placing you into its general candidate pool counts as a conditional offer and triggers the same protections that apply to a traditional job offer.³

Records Employers Can Never Use

Some records are off-limits no matter what. This holds true even after a conditional offer, even for employers exempt from other parts of the Act, and even for employers with fewer than four workers.⁴ No employer in New York City can ask about or hold against you:

Arrests that didn’t lead to a conviction, whether dismissed, acquitted, or otherwise resolved
Adjournments in contemplation of dismissal, unless the case was revoked and restored to the court calendar
Sealed, expunged, or reversed convictions
Violations and infractions such as disorderly conduct, which are not criminal convictions
Youthful offender adjudications, which are not convictions under New York law
Juvenile delinquency proceedings, which carry additional protections under the Family Court Act

If an employer runs a background check and one of these shows up, it cannot factor into any decision. Full stop.

Before a Conditional Offer

During the pre-offer phase, criminal history is off the table. Job applications cannot include checkboxes or questions about arrests, convictions, or jail time. Interviewers cannot bring it up on a phone screen or in a room. Running a background check, searching public court databases, or Googling your name for criminal information before extending a conditional offer is a direct violation.⁵

Everything before the offer must focus on your qualifications: skills, work history, education, ability to do the job. An employer that uses a third-party screening company has to structure the process so criminal history information only arrives after the conditional offer. If a report bundles criminal and non-criminal information together, the employer must set up an internal system to separate them and hold the criminal data until after evaluating everything else.²

After a Conditional Offer: The Fair Chance Process

Once the conditional offer is on the table, the employer can look at your record. Withdrawing the offer based on what it finds is a different matter. The employer has to follow a strict process, and skipping any step opens the door to a discrimination complaint.

The Fair Chance Analysis

The employer has to evaluate your record against the standards in New York Correction Law Article 23-A. Two legal tests govern. Is there a direct relationship between the offense and the specific duties of the job? If not, would hiring you pose an unreasonable risk to property or the safety of others?⁶ To answer either question, the employer must weigh eight factors set out in Correction Law § 753: New York’s public policy favoring employment of people with records, the specific duties of the job, how the conviction relates to those duties, how much time has passed, your age when the offense occurred, the seriousness of the offense, any evidence of rehabilitation you provide, and the employer’s legitimate interest in protecting property and safety.⁷

The employer must work through these in writing. A vague reference to “safety concerns” doesn’t cut it. The analysis has to connect the specific conviction to the specific job.

Written Notice and Your Five-Day Response Window

Before revoking the offer, the employer must give you a written copy of the background check results, a written Fair Chance Analysis explaining its reasoning, and the supporting documents behind the decision.⁵ You then get at least five business days to respond, and the employer must hold the position open during that window.²

Use it. This is a real chance to dispute errors on the background report, provide context, or submit evidence of rehabilitation. The employer has to consider whatever you provide before finalizing the decision.

Building a Strong Response

Documentation carries far more weight than a verbal explanation. Useful materials include:

Letters from past supervisors describing your performance and reliability
Transcripts or certificates from education and job training programs
Letters from parole or probation officers confirming compliance
Proof of volunteer work or community involvement
Letters from counselors or clergy who can speak to your growth
A personal statement in your own words about your journey since the conviction

Certificates of Relief from Disabilities and Certificates of Good Conduct, issued by a New York court, are especially powerful because they create a legal presumption of rehabilitation under Correction Law Article 23-A.

If You’re Already Employed

The Act doesn’t stop at hiring. If you’re arrested or convicted while working, your employer cannot fire, suspend, or otherwise penalize you without going through a process that mirrors the Fair Chance Analysis used for applicants. Same eight factors, written notice, and at least five business days for you to respond.

For pending arrests, the employer has to weigh the presumption of innocence. An arrest alone doesn’t establish that you did anything, and it cannot be treated as proof that you did. The employer may place you on unpaid leave while it works through the process, but it must let you use any accrued paid leave during that time. Independent contractors get the same protections as employees in this situation.²

Jobs That Are Exempt From the Pre-Offer Rules

Certain positions are carved out of the pre-offer restrictions because federal, state, or local law independently requires criminal background checks.⁵ Even in an exempt job, the employer still has to follow every part of the Act that doesn’t conflict with the other legal mandate. The main exempt categories:

Childcare positions, which require background clearances under New York Social Services Law⁸
Law enforcement and peace officer roles
Positions requiring federal security clearances or designated as sensitive
FDIC-regulated banking positions, where Section 19 of the Federal Deposit Insurance Act bars anyone convicted of an offense involving dishonesty, breach of trust, or money laundering from working at an insured bank without FDIC consent⁹

Federal Rules That Layer On Top

The Fair Chance Act doesn’t stand alone. Two federal frameworks add rights that apply alongside it.

Fair Credit Reporting Act

When an employer uses a third-party company for the background check, the report is a “consumer report” under the federal Fair Credit Reporting Act. Before ordering it, the employer must give you a written disclosure in a standalone document, and you must authorize the report in writing.¹⁰ The disclosure cannot be buried in the job application or combined with liability waivers.¹¹

If the employer plans to take adverse action based on the report, it must first send you a copy of the report and a summary of your rights under the FCRA.¹² An employer rescinding a conditional offer has to satisfy both the FCRA notice and the NYC Fair Chance Process. Failing either one gives you a separate ground for a complaint.

EEOC Guidance on Blanket Exclusions

Federal anti-discrimination law adds another layer. The Equal Employment Opportunity Commission has taken the position that blanket criminal record exclusions can violate Title VII of the Civil Rights Act if they disproportionately screen out applicants of a particular race or national origin. The EEOC evaluates these policies using three factors: the nature and seriousness of the offense, the time since the offense or completion of sentence, and the nature of the job.¹³ An employer that relies on an arrest record alone, rather than the underlying conduct, is on especially thin ice. Even where an employer technically complies with the Fair Chance Act, a “no felons” policy can still violate federal law.

Filing a Complaint and What You Can Recover

If you believe an employer violated the Fair Chance Act, you can file with the New York City Commission on Human Rights (CCHR). You have one year from the last discriminatory act.¹⁴ The CCHR runs an online reporting portal and an intake unit that can walk you through the process. Don’t let that one-year deadline pass. Once it does, the Commission can’t take your case.

After a complaint is filed, the Commission may investigate, try mediation, or hold an administrative hearing. You can also file a private lawsuit in civil court instead. Available remedies include hiring or reinstatement, back pay and front pay, compensatory damages for emotional distress, and payment of your attorney’s fees.¹⁵

The Commission can also impose civil penalties. A standard violation carries a penalty of up to $125,000. A willful or malicious violation raises that ceiling to $250,000. An employer that ignores a Commission order faces an additional penalty of up to $50,000, plus $100 for every day the violation continues.¹⁶ These numbers aren’t theoretical. The CCHR actively enforces the Act, and employers who treat the process as optional find that out the hard way.

1
NYC.gov. New York City Administrative Code Title 8 Civil Rights – Section: 8-102. Definitions
2
NYC Commission on Human Rights. Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination on the Basis of Criminal History
3
NYC.gov. NYC Admin Code 8-107 Unlawful Discriminatory Practices
4
NYC Commission on Human Rights. Fair Chance Act: Frequently Asked Questions About New York City’s Fair Chance Act
5
NYC.gov. New York City Administrative Code Title 8 Civil Rights – Section: 8-107
6
New York State Senate. New York Correction Law 752 – Unfair Discrimination Against Persons Previously Convicted
7
New York State Division of Criminal Justice Services. New York Correction Law Article 23-A
8
New York State Senate. New York Code SOS 390-B – Criminal History Review and Background Clearances of Child Care Providers, Generally
9
eCFR. 12 CFR Part 303 Subpart L – Section 19 of the Federal Deposit Insurance Act
10
Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
11
Federal Trade Commission. Background Checks on Prospective Employees: Keep Required Disclosures Simple
12
Federal Trade Commission. Using Consumer Reports: What Employers Need to Know
13
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act
14
NYC Commission on Human Rights. Complaint Process
15
NYC.gov. New York City Administrative Code Title 8 Civil Rights – Section: 8-120
16
NYC.gov. New York City Administrative Code Title 8 Civil Rights – Section: 8-124