The New York City Commission on Human Rights (the “Commission”) approved and adopted final rules amending previous rules implementing the New York City Fair Chance Act (FCA).
The finalized rule amendments are set to take effect on October 30, 2026.
Background and Previous Rules
The FCA originally took effect on October 27, 2015. The FCA was added to the New York City Human Rights Law (NYCHRL) and covers employers with four or more employees. Also known as the City’s “ban-the-box” law, the FCA limits the types of inquiries employers can make regarding criminal history during the hiring process and the timing of such inquiries, and requires that employers perform an analysis of certain factors and provide a Fair Chance Act Notice and opportunity to respond, among other requirements, prior to taking adverse action against an applicant or worker[1] on the basis of criminal history (the “Fair Chance Process”).
As we previously reported, the FCA was amended effective July 29, 2021 by Local Law 4 of 2021, which significantly expanded the scope of the FCA’s protections. Pursuant to the 2021 amendments:
- employers who run a criminal background check as part of their pre-employment process must follow a bifurcated screening process: employers can only extend a conditional offer of employment, and thus can only request and review criminal history information, after any non-criminal screening has been completed (g., employment verification, education and professional-license confirmation, reference calls);
- employers are prohibited from taking adverse action or discriminating based on “non-convictions,” including, but not limited to, non-pending arrests, cases resolved in a conviction for a violation (even if not sealed), cases adjourned in contemplation of dismissal (unless the order is revoked and the case is restored for further prosecution), cases in which the individual was adjudicated a youthful offender, cases in which all charges were dismissed, cases that resolved in a conviction for a non-criminal offense under the laws of a state other than New York, or sealed convictions;
- protections were expanded to include independent contractors and current employees (including those facing demotion, transfer, or termination), in addition to applicants for employment;
- before taking adverse action on the basis of a pending criminal charge or conviction that occurs during employment of current workers, employers must comply with the Fair Chance Process; and
- workers have five business days to respond to an employer’s Notice, extended from the original three business days.
2026 Final Rules
On July 30, 2024, as we previously explained here, the Commission published proposed amendments to the FCA rules in the City Record. The proposed rules aimed to clarify the 2021 amendments. The required public hearing was held on September 5, 2024.
More than two years later, the Commission voted to approve the final rules, with some changes from the proposed rules, at a public meeting on September 15, 2026. The final rules were published on September 30, 2026.
Changes from the 2024 proposed rules to the 2026 final rules include:
- defining what constitutes a “pending case” for purposes of the FCA;
- making technical edits to the definitions of “conditional offer of employment,” “fair chance employment analysis,” and “adverse employment action;”
- retitling certain defined terms (g., the “Fair Chance Process” is now the “Fair Chance Employment Process”) and adding new defined terms (e.g., the “Fair Chance Employment Analysis”);
- clarifying which actions constitute per se violations of the FCA (e., actions that, standing alone, constitute a violation of the FCA regardless of whether any adverse employment action was taken or actual injury occurred);
- explaining when employers may claim the “direct relationship” and “unreasonable risk” exceptions;
- clarifying what constitutes “intentional misrepresentation” and the requirements for taking adverse action on this basis;
- codifying certain provisions in the Commission’s Legal Enforcement Guidance on the Fair Chance Act and Employment Discrimination on the Basis of Criminal History, including that an employer may place an employee on leave for a “reasonable time” while conducting the Fair Chance Employment Process; and
- other technical edits throughout the FCA rules.
One of the most significant changes is the elimination of the early resolution process for Commission-initiated complaints previously available to employers with 50 or fewer employees. As a result, there is no longer a pathway for expedited settlement of alleged FCA violations by admitting liability and paying a penalty. Removal of this process aims to make enforcement of FCA protections consistent with that of other protections under the NYCHRL.
Another significant clarification is that employers are permitted to include affirmative statements encouraging individuals with criminal records to apply in job advertisements and may respond to applicants’ questions about whether a criminal background check will be performed, without violating the FCA.
What’s Next?
After a long delay in finalizing the new FCA rules, the Commission has provided a short runway for employers to adjust before the amendments take effect on October 30, 2026. New York City employers should review and update hiring policies and practices to ensure compliance with the FCA and the amended rules.
Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky contributed to this report.
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The Workforce Bulletin blog is currently edited by Scott J. Connolly, Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
ENDNOTES
[1] Protections under the FCA relating to employees also apply to interns, freelancers and independent contractors.
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