New York City Commission on Human Rights Adopts Final Rules Implementing Amendments to Fair Chance Act

On October 7, 2026, the New York City Commission on Human Rights issued final notice of its adoption of rules promulgated pursuant to the New York City Fair Chance Act.¹ The Fair Chance Act, enacted in 2015 and amended in 2020, prohibits most employers from inquiring about an applicant’s criminal history before making a conditional job offer. It also requires employers to follow specific procedures when considering an applicant or employee’s criminal history, including providing a written individualized assessment, the “Fair Chance Act Notice,” to the individual and an opportunity to respond prior to any adverse action. The new rules take effect October 30, 2026. 

The updated rules respond to statutory changes to the Fair Chance Act that took effect in July 2021 and codify or clarify standards previously reflected in the Commission’s Fair Chance Act Enforcement Guidance posted in July 2021. While the amendments to the rules do not impose new substantive obligations on employers, they significantly identify per se violations and eliminate the Commission’s early resolution procedure for Fair Chance Act complaints.

Key Definitions and Fair Chance Analysis

Incorporating existing statutory requirements, the amended rules revise the definition of “conditional offer of employment” to mirror existing law and codify that a conditional offer of employment, promotion, or transfer may not be revoked except based upon 1) a criminal background check conducted in accordance with the New York City Human Rights Law, 2) a medical examination permitted by the Americans with Disabilities Act, or 3) 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 result.  

By codifying the “two-tiered” process that requires clearance of an applicant’s non-criminal history before a conditional offer and before any inquiry regarding an applicant’s criminal history, the amended rules do not respond to employer concerns about the impracticality and inherent delays of this approach.

The amended rules also update these other key definitions:

• “Non-conviction” now applies specifically to adjournments in contemplation of dismissal (ACDs), terminations in favor of the individual, youthful offender adjudications, violations even if unsealed, specified sealed convictions, and comparable federal or out-of-state dispositions. 
• “Pending case” now specifically includes any criminal accusation or arrest based on a criminal accusation that has not yet resulted in a conviction under specified state law or a comparable status in other jurisdictions if the matter has not yet been adjudicated to a verdict, resulted in a plea or been dismissed at the time of the Fair Chance Employment Analysis that must be conducted by an employer prior to taking adverse action based on an employee or applicant’s criminal history. The definition clarifies that an ACD is a non-conviction and is not a pending case unless the ACD order has been revoked and the case restored for prosecution before the employer conducts the Fair Chance Employment Analysis.

Fair Chance Employment Process

Conforming the rules to existing law, the updated rules increase the minimum response period for applicants from three to five business days of receipt of the Fair Chance Act Notice by the candidate or employee, codifying the minimum five-business-day response period for employees previously reflected in Commission guidance.

Unpaid Leave Pending Investigation

While existing law allows an employer to place an employee on unpaid leave for a reasonable period while conducting the individualized assessment required by the Fair Chance Act when considering a pending case or conviction that occurred during employment, the amended rules further establish a rebuttable presumption that a reasonable period will not exceed five business days. This means that if an employee is suspended for more than five business days during the Fair Chance Act Process, this will be presumed to constitute an adverse action.

Timely Response

Codifying existing Commission guidance, the amended rules also require employers to consider information that the individual submits and to notify the individual 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 against the employee.

Intentional Misrepresentation Process Clarified

The amended rules further clarify the treatment of alleged intentional misrepresentations, largely codifying existing law and Commission guidance. Before taking adverse action for a misrepresentation, an employer must provide the individual with the information supporting its determination, allow the individual at least five business days from receipt of notice to respond, and consider the response. A discrepancy between a criminal background check and self-reported criminal history does not necessarily establish an intentional misrepresentation. 

Direct Relationship and Unreasonable Risk

Consistent with prior Commission guidance, the amended rules clarify the standard for determining direct relationship and unreasonable risk under the Fair Chance Employment Analysis. The direct relationship exception requires the employer first to identify a direct connection between the conduct underlying the 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, the employer must apply the New York City Fair Chance employment factors, which are articulated in the statute, to determine if the risk exists. The amended rules clarify that a conviction or pending case alone generally does not establish an unreasonable risk, and the seriousness of an offense alone (which tends to be an employer’s primary consideration) is not dispositive without consideration of the other applicable factors.

Pre-Hire Information and Per Se Violations

The amended rules expressly permit job advertisements and other employment materials to encourage individuals with criminal records to apply and permit employers to respond when applicants ask whether criminal history checks are conducted. 

The amended rules also identify conduct that constitutes a per se violation of the Fair Chance requirements. For example, using employment forms or applications that request or refer to criminal history before making a conditional offer constitutes a per se violation even if the materials contain a disclaimer or instruct applicants to skip the criminal history questions, unless another federal, state, or local law requires the language. 

In addition, the amended rules expressly make it a per se violation to fail to conduct a new Fair Chance Employment Analysis before adverse action after an applicant or employee identifies a material error in the criminal history used in the analysis. Conducting a new analysis applying the Fair Chance Act factors when a deficiency has been noted can be a way for employers to mitigate any deficiencies in their initial review. 

Exemptions 

The amended rules add detail on exemptions for laws requiring criminal background checks or employment bars, largely codifying prior Commission guidance. A mandatory bar exemption allows employers to disqualify employees without a Fair Chance Act review only based on criminal offenses that the applicable law considers disqualifying for the specific role (for example, crimes of dishonesty and certain positions in banks). Other adverse actions not required by the legal mandate remain subject to the Fair Chance Employment Process. While an employer may conduct a criminal background check before the conditional offer of employment when required by law, if the law does not require adverse action, the employer must complete the remaining applicable Fair Chance steps before taking adverse action.

The amended rules also reflect prior guidance providing that an employer generally may not state that a background check is required in a job advertisement unless another law explicitly requires such a statement.  

Enforcement

Unlike many of the changes discussed above, the amended rules make a direct change to 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. The Commission explains that the change is intended to make enforcement of Fair Chance Employment protections consistent with other Human Rights Law protections now that the law has been in effect for a significant period. 

Action Items for Employers

In light of the amended rules, employers can consider taking the following steps:

• Review and revise, as needed, existing criminal history and background check processes, forms and screening procedures for compliance with the amended rules.
• Update, as needed, Fair Chance procedures for response periods, review of supplemental or corrected criminal history information, and final adverse action decisions.
• Conduct direct training of those personnel responsible for hiring, background check adjudication and criminal history review on the clarified direct relationship, unreasonable risk, and intentional misrepresentation standards.