New York City Revised Hiring Rules on Criminal History Take Effect Friday
Revised rules governing how New York City employers may consider criminal history in hiring decisions take effect Friday, October 30, 2026, according to analyses by several employment law firms of the final rules adopted by the New York City Commission on Human Rights.
The rules implement the New York City Fair Chance Act, a law often described as a ban-the-box law because it limits when an employer may ask about criminal history during hiring. The law originally took effect in 2015 and was significantly expanded by amendments that took effect in 2021, and the revised rules largely bring the regulations into line with those amendments and with earlier commission guidance, the law firms Seyfarth Shaw, Littler and Epstein Becker Green reported.
The Fair Chance Act covers employers in New York City with four or more employees, according to Epstein Becker Green. Its process also applies to employment agencies and agents acting for employers, and its protections reach beyond job applicants to current employees, including workers being considered for a promotion or a transfer and workers whose pending cases or convictions arise during employment.
At the center of the law is the conditional offer rule. An employer generally may not inquire about an applicant’s criminal history before making a conditional offer of employment, and that bar covers questions on an application, questions in an interview, a request for authorization to run a criminal background check and searches of public records or the internet for criminal history, Seyfarth Shaw and Ogletree Deakins reported.
Employers that run criminal background checks as part of hiring must also follow a two-step sequence. Noncriminal screening, such as employment verification, education and license confirmation and reference checks, comes first, and only after that screening is complete may the employer extend a conditional offer and then request and review criminal history information, according to Epstein Becker Green.
A conditional offer of employment, promotion or transfer may be revoked only in limited circumstances. Littler reported that those circumstances are a criminal background check conducted in accordance with the New York City Human Rights Law, a medical examination permitted by the Americans with Disabilities Act, or 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 result.
Job advertisements and application forms require particular care under the revised rules. Employers may include statements encouraging people with criminal records to apply and may answer when applicants ask whether a criminal history check is conducted, Littler and Epstein Becker Green reported. Employers generally may not state in an advertisement that a background check is required unless another law explicitly requires that statement, and a pre-offer form that requests or refers to criminal history can violate the law even if it tells applicants to skip the question, unless another law requires the language.
If an employer is considering withdrawing a conditional offer or taking other adverse action because of criminal history, it must first conduct an individualized assessment. The employer must affirmatively request information relevant to the applicable factors from the applicant or employee and prepare a written analysis before making a final decision, according to Seyfarth Shaw and Kaufman Dolowich.
Which factors apply depends on the timing of the record. Convictions that occurred before employment began are generally evaluated under Article 23-A of the New York Correction Law, while pending cases and convictions that occur during employment are evaluated under the New York City Fair Chance Employment Factors, Seyfarth Shaw and Kaufman Dolowich reported. Those factors weigh matters such as the specific duties of the job, the bearing of the conduct on fitness for those duties, whether the person was 25 or younger at the time of the offense, the seriousness of the offense, the employer’s legitimate interest in protecting property and the safety of specific people and the public, and rehabilitation or other evidence of good conduct.
Before taking adverse action, the employer generally must give the person a written copy of the criminal history inquiry it relied on and a written Fair Chance Employment Notice explaining its analysis, and must allow a reasonable period of at least five business days to respond. That period, up from three business days, begins only when the person receives both documents, and during that period the employer may not permanently fill the position, according to Ogletree Deakins and Seyfarth Shaw. The employer must consider information submitted in time and must communicate any final adverse decision promptly in writing.
Accuracy disputes have their own procedure under the revised rules. If an applicant or employee identifies a material error in the criminal history used in the analysis, the employer must conduct a new analysis before proceeding with adverse action, Seyfarth Shaw reported. In a separate situation, before taking adverse action for an alleged intentional misrepresentation about criminal history, the employer must share the information supporting that determination, allow at least five business days to respond and consider the response, and a discrepancy between a background report and a person’s own account does not by itself prove intentional misrepresentation, according to Littler and Kaufman Dolowich.
An employer that still wishes to act after the analysis must fit within one of two narrow exceptions. For a direct relationship exception, the employer must identify a direct connection between the conduct underlying the conviction or pending case and the specific duties of the position and then consider whether the applicable factors mitigate the concern. For an unreasonable risk exception, the employer must apply all of the relevant factors, and the existence of a conviction or pending case alone, or the seriousness of an offense alone, is generally not enough, Seyfarth Shaw and Ogletree Deakins reported.
Some records are largely off limits. 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, Kaufman Dolowich reported. An adjournment in contemplation of dismissal counts as a pending case only if the order is revoked and the case is restored for prosecution before the employer conducts its analysis, according to Littler.
The revised rules also name certain practices as per se violations, meaning they can violate the law even without an adverse employment decision or demonstrated injury, Epstein Becker Green and Kaufman Dolowich reported. Those practices include prohibited pre-offer inquiries, improper application materials and certain failures to provide the required materials, to allow the required response period, to consider timely submitted information or to conduct a new analysis after a material error is identified.
Exemptions for other laws remain narrow. An exemption applies only to the extent another law actually requires the particular background check or employment bar at issue, and if a law requires a check but does not require rejection based on its result, the employer must still complete the Fair Chance Employment Process before taking adverse action, Seyfarth Shaw and Ogletree Deakins reported. Employers also bear the burden of showing that an exemption applies to each specific action, according to Ogletree Deakins.
Enforcement changes as well. The revised rules eliminate the commission’s early resolution process for commission-initiated Fair Chance Act complaints, a process Epstein Becker Green reported was previously available to employers with 50 or fewer employees and allowed expedited settlement by admitting liability and paying a penalty. The commission’s stated aim, according to Littler, is to make enforcement of Fair Chance protections consistent with other protections under the Human Rights Law.
For job seekers, the practical effect is timing and a chance to be heard. Criminal history should generally not enter the conversation until after a conditional offer, and if an employer later raises a record, the person is entitled to see what was relied on, to receive the written analysis and to have at least five business days after receiving both documents to respond with corrections or evidence of rehabilitation or good conduct before a final decision.
For employers, the law firms advise reviewing application forms, job postings, the order of background screening, Fair Chance notices and procedures for current employees, and training hiring managers and screening staff on the pre-offer ban and the notice and response steps. Littler noted that the amendments do not impose new substantive obligations in its view, while Seyfarth Shaw stressed that procedural failures can independently violate the law, which makes the forms, notices and timing as important as the final hiring decision.