Quick Hits
- New York City recently adopted final amended rules implementing the Fair Chance Act, which limits employers’ criminal history inquiries and consideration of criminal histories in taking adverse actions against applicants or employees being considered for promotion or transfer.
- The rules requires employers to allow at least five business days for candidates to respond to inquiries about their criminal history before revoking offers or taking adverse actions—up from three days.
- The amended rules clarify requirements for employers to rely on exceptions when a criminal history has a “direct relationship” to a position or creates an “unreasonable risk.”
- The final amended rules take effect on October 30, 2026.
On September 15, 2026, the CCHR adopted final amended rules that align the commission’s regulations with Local Law 4 of 2021, which significantly expanded the FCA. The FCA, known as a “ban the box” law, prohibits criminal conviction inquiries prior to a conditional offer of employment and limits when an employer may take adverse action based on an applicant’s or employee’s arrest or conviction history.
The finalization comes more than two years after the CCHR proposed them in July 2024. The final amended rules take a harder line on enforcement and spell out new compliance obligations for employers in New York City.
Longer Response Period and Coverage of Current Employees
The most immediate operational change is timing. Under the rules, an employer that wants to revoke a conditional offer or take adverse action based on criminal history must now hold the position open or refrain from taking adverse action, and give an individual a reasonable time of at least five business days to respond, up from the prior three days. That period begins only when the individual receives both a required Fair Chance Employment Notice and a written copy of the inquiry to collect information about the criminal history. During that period, the employer may not permanently fill the position.
The final rules also clarify that the Fair Chance Employment Process applies to current employees whose pending cases or convictions arise during employment.
Expanded Fair Chance Employment Process
The final rules specify the “Fair Chance Employment Process” that employers, employment agencies, or agents must follow when withdrawing a conditional offer of employment, denying a transfer or promotion, or taking adverse action based on an employee’s or applicant’s criminal history.
The rules direct consideration of the following factors:
- the policy of the city to overcome “unnecessary exclusion of persons with criminal justice involvement” in employment;
- “the specific duties and responsibilities necessarily related to the employment”;
- “the bearing, if any,” of the conviction history or pending arrest or criminal accusation on the applicant’s or employee’s “fitness or ability to perform one or more [of the job’s] duties or responsibilities”;
- “whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses” at issue;
- “the seriousness of such offense or offenses”;
- “the legitimate interest of the … employer in protecting property, and the safety and welfare of specific individuals or the general public”;
- “any additional information produced by the applicant, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.”
Clarified Per Se Violations
The rules clarify that “per se violations” of the FCA include using application forms or language expressing limitations on applicants or employees with criminal histories, “unsolicited statements about criminal background checks,” seeking information about an applicant’s criminal history prior to a conditional offer of employment, or “referencing that background checks will be conducted” except in response to applicants’ questions about criminal history checks. The rules also prohibit “the use of publicly available records or the [i]nternet for the purpose of learning about an applicant’s criminal history” prior to a conditional offer of employment. Further, the rules state that it is a per se violation to fail to follow the “Fair Chance Employment Factors.”
Employers must provide applicants or employees with a written copy of any inquiry into their criminal history, a written copy of their “Fair Chance Employment Analysis,” and allow an employee or applicant reasonable time to respond.
Broader Definitions of Protected ‘Criminal History’
The rules redefine “criminal history” to include “a person’s conviction history, non-convictions, and pending cases.” Notably, the new definition removes “unsealed violations” from the definition of “conviction history.”
As for “non-convictions,” the definition now covers adjournments in contemplation of dismissal. An adjournment in contemplation of dismissal becomes a “pending case” only if the order is revoked and the case is restored to the calendar before the employer conducts its analysis. Employers, employment agencies, and agents may not “seek or consider information pertaining to an applicant’s non-convictions unless specifically required by any other federal, state or local law, or unless otherwise exempt.”
Narrowing of ‘Direct Relationship’ and ‘Unreasonable Risk’ Exceptions
Under the FCA, after looking at the fair chance factors, employers can decide not to hire an applicant for two reasons:
- A direct relationship exists between the conviction and the sought job.
- The conviction history creates an unreasonable risk to people or property.
The final rules clarify the requirements for both the “direct relationship” and “unreasonable risk” exceptions. To rely on the “direct relationship” exception, employers must now show a direct connection between the alleged conduct and specific job duties. To rely on “unreasonable risk,” employers must “consider and apply all of the relevant” fair chance factors. The rules further caution that “the existence of a conviction or a pending case alone” is insufficient to show an “unreasonable risk,” nor is consideration of the “seriousness alone” without consideration of other factors. (Emphasis added).
Clarified Exemptions
Further, the rules reorganize exemptions and state that they are to be “construed narrowly,” with employers bearing the burden of proving that an exemption applies to each specific action. The rules recognize exemptions for certain law enforcement positions. For other positions for which employers are legally required to run background checks, the rules state that they may do so before a conditional offer. But unless they are legally required to reject the candidate, employers still must complete the full Fair Chance Employment Process. Unless another law explicitly requires it, employers may not state in job postings that a background check is required.
Changing Federal Regulatory Landscape
Notably, New York City’s move to strengthen restrictions on employers’ consideration of employees’ and applicants’ criminal histories comes as the federal government, under the current administration, has taken steps to roll back those restrictions. On October 6, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) advanced a proposal to rescind the 2012 guidance suggesting that employers’ use of criminal background information to make employment decisions may violate Title VII of the Civil Rights Act of 1964. While it is not clear that the EEOC will replace the guidance, it is anticipated that states and other jurisdictions, such as New York City, will fill in the gaps. At the same time, the rescission of the 2012 EEOC guidance would not impact the background check requirements imposed by the federal Fair Credit Reporting Act (FCRA).
Next Steps
The new rules amend New York City’s existing requirements under the FCA, augmenting employers’ compliance obligations, and take effect on October 30, 2026.
In light of the newly augmented New York City rules, employers in the city may want to ensure that job postings and applications remove criminal history questions and language on background checks, unless the position is specifically exempted, and may wish to train recruiters and others conducting interviews to avoid prohibited verbal inquiries during pre-offer interviews. Most immediately, the amended rules extend the waiting period to five business days for which employers must hold open a position following a conditional offer and updates the content of required Fair Chance Act notices.
Ogletree Deakins’ New York office and Background Checks Practice Group will continue to monitor developments and will provide updates on the Background Checks and New York blogs as additional information becomes available.
In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state Background Check laws, as well as those of major localities. Subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.
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