Law & regulation · 8 November 2026 · 7 min read

New York City’s amended Fair Chance Act rules are in effect

The city’s amended Fair Chance Act rules are not a new statute. They are the operating manual for one, and the parts that changed are the parts an applicant actually experiences: what the notice says, how long the position stays open, and who counts as covered.

By Marko Ivanov

The New York City Commission on Human Rights’ amended rules implementing the New York City Fair Chance Act took effect on 30 October 2026. The Commission approved the final rules on 15 September 2026 and published them on 30 September. They replace the earlier rules that implemented Local Law 4 of 2021, the amendment that turned the city’s ban-the-box law into a post-offer process with a notice, a response period and an individualized analysis.

The Fair Chance Act has applied to employers with four or more employees since 2015. The 2021 amendments expanded it: employers must complete the non-criminal parts of the screening process before extending a conditional offer, may not consider most non-convictions, and must follow the same process for current employees facing a promotion, transfer or termination based on criminal history. The 2026 rules do not create a new statute. They convert the Commission’s guidance into rules and resolve several definitional questions that had been left to enforcement practice.

The five-business-day period is now a rule

The headline change is the response period. An employer must give the applicant or employee at least five business days to respond before taking adverse action based on criminal history. The clock starts only when the individual receives both the Fair Chance Employment Notice and a written copy of the criminal-history inquiry. The position cannot be permanently filled during that period.

Five business days is a floor, not a suggestion, and it is longer than the three business days the original rules used. It is also different in kind from the federal five-day practice that many screening programs use. The federal figure comes from FTC staff opinion letters rather than a statute; the city figure is a rule with a defined trigger and an enforcement mechanism. Where both apply, the safer reading is the longer period, counted from receipt.

Per se violations are easier to identify

The amended rules clarify which acts are violations standing alone, without proof of an adverse employment action or actual injury. They include asking about criminal history before a conditional offer, requesting a background-check authorization before an offer, telling applicants unsolicited that a background check will be conducted, searching public records or the internet for criminal history before an offer, and using application language that references criminal history even with a disclaimer. Failing to provide the required notice or the response period, failing to consider information the applicant submits on time, and failing to redo the analysis when a material error is identified are also on the list.

The rules also make clear what an employer may do. It may include an affirmative statement encouraging people with criminal records to apply. It may answer an applicant who asks whether a background check will be performed. The prohibition is on raising the subject first, not on responding to a question the applicant raised.

The process reaches current employees

The 2021 amendments extended the Fair Chance process to current employees, including promotions, transfers and pending cases or convictions that arise during employment. The 2026 rules clarify how that works in practice. An employer may place an employee on paid or unpaid leave for a reasonable time while it conducts the process; the rules treat five business days as a rebuttable presumption of reasonableness, and a longer leave may itself be evidence of an adverse action.

The rules also address the two exceptions employers rely on most. A "direct relationship" between the conviction and the job, or an "unreasonable risk" to people or property, can justify an adverse decision, but the seriousness of the offense alone is not enough. The employer has to consider the factors in the Fair Chance Act and Article 23-A of the New York Correction Law, and it has to show that it did. The rules also clarify the "intentional misrepresentation" route: the individual gets five business days to respond, and a discrepancy in the record is not automatically a misrepresentation.

One procedural change cuts the other way. The Commission eliminated the early resolution process that had been available to employers with 50 or fewer employees in Commission-initiated complaints. There is no longer an expedited route that consists of admitting liability and paying a penalty; the enforcement process now runs like other NYCHRL complaints.

What employers should check

• Remove criminal-history questions and background-check statements from the application. The rules treat a reference to criminal history in an application, even one with a disclaimer, as a per se violation. The employment application and the applicant tracking system both count.
• Separate the non-criminal and criminal stages. Complete employment verification, education and license checks, and reference calls before making the conditional offer. The criminal inquiry comes after the offer, not before it.
• Send both documents. The Fair Chance Employment Notice and a written copy of the criminal-history inquiry start the five-business-day clock. Sending one without the other does not.
• Do not fill the position during the response period. The role has to remain open until the period runs.
• Write the analysis. The rules call it the Fair Chance Employment Analysis. It has to address the factors, not merely recite the conviction. The screening program toolkit includes an adjudication matrix and an assessment worksheet that can be adapted, but the worksheet is not the analysis.
• Audit the vendor configuration. If the screening platform auto-rejects a record before a human sees it, the employer has adopted a rule the city requires it to apply individually. Check the automated decision points, not only the written policy.
• Train managers on what they can say. A recruiter who asks about a conviction in the first call has committed a per se violation before the background check starts.

What the rules do not change

The FCRA sequence still applies. The standalone disclosure, the authorization, the pre-adverse action notice with a copy of the report and the summary of rights, and the adverse action notice are federal duties that sit alongside the city process. The city’s notice is not a substitute for the federal one. The adverse action article explains why the two statutes drive different notices, and theFCRA compliance guidecovers the employer’s side.

The rules do not change the law outside New York City. A national program still has to reconcile the city rules with the state guide and with every other jurisdiction that has its own process. The New York state guide is the starting point, and the fair chance articleexplains the structure the local rules are built on.

The bottom line

The amendments are mostly a codification, not a new substantive obligation, but they remove the ambiguity that let programs treat the five-day period as a guideline and the pre-offer stage as a place to ask. The employers most exposed are the ones whose applicant tracking system still asks the question in a dropdown, whose vendor auto-rejects before a human review, or whose managers mention the background check before the conditional offer. Those are the places to look first.

Sources

• NYC Commission on Human Rights, Fair Chance Act
• NYC Commission on Human Rights, Rules of the City of New York, Title 47
• Epstein Becker Green, "Revised New York City Fair Chance Rules Take Effect October 30" (26 October 2026)
• NYC Local Law 4 of 2021
• New York City Human Rights Law, N.Y.C. Admin. Code §8-107(11-a)

Published 8 November 2026. Nothing here is legal advice; see the terms of use.