NYC Fair Chance Act: The Process and the Notices

The process at a glance

New York City's Fair Chance Act became part of the City Human Rights Law on October 27, 2015. It does two things. It moves every criminal history question to after a conditional offer, and it stops you from pulling that offer over a conviction or a pending case until you have weighed the record against the job, shown the applicant your reasoning in writing, and given them time to answer. The Commission on Human Rights calls the second half the Fair Chance Process.

Local Law 4 of 2021, in force since July 29, 2021, widened it. The process now covers pending cases as well as convictions, protects current employees and not only applicants, and adds unsealed violations and non-criminal offenses to the records an employer may never use. The Commission's legal enforcement guidance was rewritten for those amendments, and it is the document this page follows.

None of this replaces the FCRA. When a screening firm runs the check, the stand-alone disclosure, the pre-adverse notice with the report and the Summary of Rights, and the final notice all still apply. NYC adds its own notice and a response window you can count to the day. Our pre-adverse and adverse action notice guide lays the federal, California and NYC letters side by side.

Who the law covers

The Commission's guidance applies to employers with four or more employees, and to labor organizations and employment agencies. Its protections reach interns, freelancers and independent contractors too. “Applicant” has a wide meaning: a person seeking a first job with you, and a current employee being considered for a promotion or transfer. Temporary help firms follow the same process, with one twist: their conditional offer is an offer to place the person in the firm's labor pool, and a client company that takes a temp worker may not ask about the record until the worker is assigned.

Exemptions are position by position, not company-wide. A home care agency that must run state checks on aides still follows the full process for its office manager, and a mixed workforce runs the process for every role no law covers. The Commission recommends keeping a log of each exemption you rely on for three years.

Before the offer: no questions, no searches

The offer has to be real. The guidance says a conditional offer comes after you have assessed every other qualification, and the only things it may still hang on are the criminal check, a medical exam where the ADA allows one, and information you could not reasonably have known before. Calling an offer “conditional” while you still have references to check does not count. Changing the job's duties after the check, in a way that disqualifies the applicant, is presumed to be a pretext.

Screening firms often bundle criminal and non-criminal searches in one order. The Commission's answer is to order in two stages: the non-criminal report before the offer, the criminal one after. If two reports are a real burden, you may keep one report but wall off the criminal part so no decision-maker sees it before the offer, and you carry the burden of proving that wall held. If an applicant volunteers their record in an interview, do not explore it; say you will only consider it if you make an offer, and move on.

Records you may never use

The Human Rights Law draws a hard line around what the guidance calls non-convictions. Unless a law specifically requires or permits it, an employer may not ask about them, hint at a limit based on them, or act on them, at any stage. A screening report can still carry some of these entries, so the burden of setting them aside is yours.

Pending cases are different: since Local Law 4 they are not off limits, but they get the same Fair Chance Process as convictions. California has its own never-use list, which you can compare in the California Fair Chance Act guide.

The Fair Chance Analysis

You may decline over a conviction or a pending case only if, after weighing the factors, you can show one of two things: a direct relationship between the record and this job, or that hiring the person would involve an unreasonable risk to property or to the safety or welfare of specific people or the public. A record alone proves neither. For a direct relationship, the conduct must connect to the specific nature of the job; for unreasonable risk, the guidance tells you to start by assuming there is none and then show how the factors add up to one. Even a direct relationship can be outweighed by time passed and evidence of rehabilitation.

For older convictions the factors are New York State's Article 23-A list, the same one every New York employer with ten or more employees already uses. Our individualized assessment guide sets out those eight factors, the certificate presumption and a worksheet. For pending cases and anything that happens during employment, the City uses its own seven factors:

1. The City's policy of overcoming stigma toward, and unnecessary exclusion of, people with criminal justice involvement
2. The specific duties and responsibilities of the job
3. The bearing, if any, of the offense (convicted or alleged) on the person's fitness to do those duties
4. Whether the person was 25 or younger at the time, which counts in their favor
5. The seriousness of the offense
6. The employer's legitimate interest in protecting property and the safety of specific people or the public
7. Any information the person gives about rehabilitation or good conduct, including a record of good work

The inquiry and the Fair Chance Notice

The Commission publishes a Fair Chance Notice form at nyc.gov/FairChanceNYC. You may adapt its layout, but not its substance. The notice evaluates each relevant factor, states whether you found a direct relationship or an unreasonable risk, and explains how the weighing led to your decision. It names a contact person with a phone number or email for the response, gives the deadline, and asks for evidence of rehabilitation and good conduct with examples of what counts.

Delivery matters because the clock starts on receipt. Hand delivery, registered mail or an electronic method you can confirm all work. Email is allowed only if you and the applicant agreed on it in advance, so put that agreement in the offer letter or the consent paperwork. In New York State, a report with conviction information also triggers a copy of Article 23-A for the applicant, which the notice guide covers. The adverse action letter generator drafts the federal letters with the NYC attachments listed.

The five business days

In the first row the five days are November 23, 24, 25, 27 and 30, so the earliest decision is Tuesday, December 1. The Christmas row shows how holidays stretch the window: received on December 23, it runs through New Year's Eve and the first business day after is January 4. Nothing stops you giving more than five days, and when the applicant is disputing the report with the screening firm, which generally has 30 days to reinvestigate, waiting for that answer is the safer choice.

The window is the response period, not a formality. The guidance expects a conversation: the applicant may answer orally or in writing, address your concerns and add information on any factor. The adverse action timeline calculator counts these dates for any send date, with the federal practice wait alongside.

After the response

Read what the applicant sends and decide whether it changes your analysis. If you still decline, tell them in writing within a reasonable time; where a screening report was involved, that letter carries the FCRA final notice items too. If you hire after all, nothing more is required by the City law.

An intentional lie about a conviction or a pending case is a lawful reason to decline without the analysis, but the guidance sets a high bar. You must show the applicant the information behind your belief and give them at least five business days to answer, and a mismatch is not proof of intent: people confuse the charge with the conviction, assume an old case no longer counts, or are the victims of a records error. A misstatement about a non-conviction can never be held against them.

Current employees and pending cases

Since Local Law 4, the process protects people already on the payroll. You may not discipline or fire an employee over a conviction or a pending case unless a Fair Chance Analysis shows a direct relationship or an unreasonable risk, and then only after the same three steps: a copy of the inquiry, the written analysis, and at least five business days to respond before any final action. Convictions from before the job use the Article 23-A factors; arrests and convictions during it use the NYC factors.

The FCRA treats a report used for retention or promotion as an employment-purpose report, so the federal steps apply to a screening report on a current employee too. FTC staff have said a valid disclosure and authorization stay effective for the length of employment, so check the one on file before you order. Our FCRA rules for employers walk through that sequence.

What counts as a violation

Each failure in the process is its own chargeable violation, separate from any claim that the decision itself was discriminatory. Withdrawing an offer after a check without running the process creates a presumption that the record was the reason. For complaints the Commission itself brings over a per se violation, its rules offer an early resolution: admit the violation, take the Commission's free training, post a notice of rights and pay a fine from its penalty schedule. That route does not stop the applicant filing their own complaint.

The file to keep

It is good practice to keep the criminal history part of the file apart from the general personnel file and limited to the people who decide. When you dispose of a screening report, shred it or make it unreadable. One more NYC rule touches the same file: under the Stop Credit Discrimination in Employment Act, most NYC employers may not request or use an applicant's consumer credit history, so the post-offer report should leave credit out. Our credit checks for employment guide covers that law.

Questions employers ask