What’s New: New York City’s Commission on Human Rights adopted amended rules for the Fair Chance Act (FCA) that take effect on October 30, 2026.
Important Takeaways:
- Clarification of employer procedures
- Identifying per se violations
- Eliminating the early resolution process for Commission-initiated complaints
The FCA prohibits most New York City employers from inquiring about an applicant’s criminal history before making a conditional offer of employment. The FCA applies to employers operating within New York City with four or more employees (including full-time, part-time, independent contractors, or freelancers).
Clarification of Employer Procedures
Definition of Conditional Offer of Employment
The amended rules revise the definition of “conditional offer of employment” to include promotions, retention offers, and transfers for existing employees, in addition to prospective new hires. A conditional offer cannot be revoked unless the revocation is based on one of the following:
- A criminal background check that was conducted in accordance with the New York City Human Rights Law (either by using a “two-step” process or establishing a system to internally segregate criminal history information to ensure that it is available to decision makers only after a conditional offer has been made).
- A medical examination permitted by the Americans with Disabilities Act.
- Information the employer could not reasonably have known before making the offer that would have caused the employer not to make the offer in the first place, regardless of the criminal background check results.
Response to Fair Chance Act Notice
The FCA requires New York City employers to provide a written Fair Chance Act Notice Form before taking any adverse employment action based on an applicant’s criminal history. The updated rules increase the applicant’s minimum response period from three to five business days from receipt of the notice.
Timely Response
The amended rules also require employers to consider information in the applicant’s response and to notify the applicant in writing and in a timely manner if, after reviewing that information, the employer decides not to hire the applicant or to take adverse employment action.
Unpaid Leave Pending Investigation
The FCA allows an employer to place an employee on unpaid leave for a reasonable period while conducting the required individualized assessment (contained in the Fair Chance Act Notice Form) when considering a pending case or conviction that occurred during employment. The amended rules state that a reasonable period will not exceed five business days.
Intentional Misrepresentation Process Clarified
If an employer intends to take adverse action against an applicant or employee based on an intentional misrepresentation about their conviction history or pending case, the amended rules require an employer (1) to provide the applicant or employee with the information supporting its determination, and (2) to allow the applicant or employee at least five business days from receipt of notice to respond. The employer must consider the response as part of its individualized assessment. A discrepancy between a criminal background check and self-reported criminal history does not necessarily establish an intentional misrepresentation.
Direct Relationship and Unreasonable Risk Exceptions
After conducting the required individualized assessment, the amended rules clarify the standards for determining whether (1) there is a “direct relationship” between the applicant’s or employee’s conviction history or pending case and the prospective or current job, or (2) employing or continuing to employ the person would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
- To claim the “direct relationship” exception, an employer must first show a direct
- connection between the nature of the alleged conduct underlying a conviction or
- pending case and specific job duties and responsibilities. If such a connection exists, the employer must consider all relevant Fair Chance Act factors to
- determine whether the concerns presented by the relationship have
- been mitigated.
- To claim the “unreasonable risk” exception, an employer must consider and apply all the Fair Chance Act factors to determine if an unreasonable risk exists.
- Generally, a conviction or pending case alone does not establish an unreasonable risk. While the seriousness of an offense is one factor, considering seriousness alone, without analyzing the other factors, is insufficient to establish compliance with the Fair Chance analysis.
Per Se Violations
The amended rules also clarify conduct that constitutes a “per se violation” of the FCA requirements, as noted below. (A “per se violation” is an action that is legally considered inherently illegal or harmful “by itself,” without needing extra proof of intent, bad motives, or actual damage.)
- Using forms or applications that contain certain language that requests or relates to criminal history.
- Failing to consider timely provided additional information relating to the Fair Chance Factors (contained in the Fair Chance Act Notice Form) after the employer has shared its analysis, before taking an adverse action based on the employee’s criminal history.
- Failing to conduct a new Fair Chance Employment Analysis when an employee or applicant identifies an error in their criminal history that is material to the analysis, including but not limited to the inclusion of an incorrect matter disposition or erroneous inclusion of a pending case or conviction, before taking an adverse action.
Enforcement Changes
The amended rules directly change the existing regulatory enforcement framework by eliminating the Commission’s early resolution process for Commission-initiated Fair Chance complaints. The former regulatory provisions establishing the procedure and its penalty schedule are deleted.
Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.