New York City’s Fair Chance Act serves as one of the nation’s most comprehensive “ban-the-box” laws, fundamentally changing how employers can conduct criminal background checks during the hiring process. This groundbreaking legislation prohibits employers from asking about criminal history until after making a conditional job offer, ensuring that qualified candidates receive fair consideration based on their skills and qualifications first.
The law applies to most NYC employers with four or more employees and establishes a strict two-step background check process that protects job seekers from criminal record discrimination. Understanding these requirements isn’t just about legal compliance—it’s about creating equitable hiring practices that benefit both employers and the diverse workforce across all five boroughs. At Tremiti Law LLC, we help NYC employers navigate these complex regulations while building stronger, more inclusive hiring practices.
Whether you’re a small business owner in Brooklyn or manage hiring for a large Manhattan corporation, mastering the Fair Chance Act’s requirements protects your organization from costly penalties while opening doors to talented candidates who deserve a second chance.
What Is the NYC Fair Chance Act?
The NYC Fair Chance Act represents a pivotal shift in employment law, designed to eliminate criminal record discrimination and provide meaningful opportunities for individuals with criminal histories. This comprehensive legislation recognizes that people can change and contribute positively to society, regardless of past mistakes.
The law fundamentally restructures the hiring timeline by requiring employers to evaluate candidates based on job-relevant qualifications before considering criminal history. This approach ensures that qualified individuals aren’t automatically disqualified due to past convictions that may have no bearing on their ability to perform specific job duties.
How the Fair Chance Act Works
The Fair Chance Act operates on a simple but powerful principle: criminal history consideration comes last, not first. Employers must complete their entire evaluation process—including interviews, skill assessments, reference checks, and all other non-criminal background verification—before looking at any criminal records.
This process protects candidates from unconscious bias and ensures hiring decisions reflect actual job qualifications rather than assumptions about criminal history. The law recognizes that many factors influence a person’s suitability for employment, and criminal history represents just one piece of a much larger picture.
The legislation also establishes clear protections for job seekers, including the right to receive written explanations if criminal history influences hiring decisions and opportunities to provide additional context about their circumstances.
Which Employers Must Follow These Laws
NYC Fair Chance Act compliance obligations apply to virtually all employers operating within the five boroughs who employ four or more people. This threshold includes the business owner in the count, meaning even small businesses often fall under these requirements.
The law covers all employment relationships within NYC boundaries, regardless of where the company is headquartered. Whether you’re hiring for positions in Manhattan offices, Brooklyn warehouses, Queens retail locations, Bronx manufacturing facilities, or Staten Island service centers, the Fair Chance Act applies to your hiring process.
Importantly, the law protects both full-time and part-time positions, temporary work, and most contractor relationships where the individual works primarily under the employer’s direction and control.
NYC Two-Step Background Check Process
The 2021 amendments to the Fair Chance Act established a mandatory two-step background check process for NYC employers that fundamentally changed hiring timelines. This structured approach ensures employers make informed decisions while protecting candidates from premature disqualification.
Understanding this process is crucial for compliance, as violations can result in significant penalties and legal exposure. The two-step system creates clear boundaries between different phases of candidate evaluation.
Step 1: Complete Non-Criminal Assessments First
During the initial evaluation phase, employers must thoroughly assess candidates using all job-relevant criteria except criminal history. This includes reviewing resumes, conducting interviews, checking employment references, verifying education credentials, and performing any skills-based testing.
Pre-employment screening restrictions during this phase are absolute—employers cannot ask about criminal history in any form, whether through application questions, interview inquiries, or informal conversations. This prohibition extends to verbal questions, written forms, and even casual discussions about past legal troubles.
Employers should use this phase to build a complete picture of each candidate’s qualifications, work history, and potential fit within the organization. Many employers discover that focusing on these factors first leads to better hiring decisions overall.
Step 2: Make Conditional Offer Before Criminal Background Check
Only after completing all non-criminal evaluations can employers extend conditional job offers. These offers must be genuine—meaning the employer would hire the candidate if no disqualifying criminal history emerges during the background check process.
Criminal history inquiry restrictions continue until the conditional offer is formally extended and accepted. At that point, employers can conduct criminal background checks, but they must follow specific procedures for evaluating any discovered criminal history through the individualized assessment process.
The conditional offer must specify that employment is contingent on satisfactory completion of the background check process, but it should reflect the employer’s genuine intent to hire the candidate based on their qualifications.
When Can NYC Employers Run Background Checks?
Background check timing restrictions in NYC are more stringent than in most other jurisdictions, creating specific windows when employers can and cannot inquire about criminal history. Understanding these timing requirements prevents costly violations and ensures fair treatment of all candidates.
The law establishes clear milestones in the hiring process that trigger different obligations and permissions for employers, creating a structured timeline that protects both parties’ interests.
Prohibited Pre-Offer Practices
Before making conditional offers, employers face comprehensive restrictions on criminal history inquiry prohibited period activities. These include asking about arrests, convictions, criminal charges, or any related legal proceedings on application forms, during interviews, or in casual conversations.
Pre-employment screening restrictions also prohibit employers from conducting social media searches specifically looking for criminal history information, requesting criminal background checks from previous employers, or asking references about candidates’ criminal histories.
Even seemingly innocent questions about “legal troubles,” “court appearances,” or “background check concerns” violate the Fair Chance Act’s pre-offer inquiry restrictions. Employers must train hiring managers to avoid these topics entirely during initial candidate evaluations.
Required Fair Chance Analysis Process
When criminal history appears during background checks, employers cannot automatically disqualify candidates. Instead, they must conduct a Fair Chance Act individualized assessment considering eight specific factors outlined in Article 23-A of New York State law.
These factors include the nature and gravity of the offense, the time elapsed since conviction, the candidate’s age at the time of the offense, evidence of rehabilitation, and the relationship between the criminal history and the specific job duties. Employers must also consider the candidate’s employment history since the conviction and their overall conduct during the hiring process.
The assessment must be individualized and documented, demonstrating that the employer genuinely considered how the specific criminal history relates to the particular position and work environment. Generic policies that automatically exclude certain types of convictions typically violate the Fair Chance Act.
NYC Fair Chance Act Penalties and Enforcement
Fair Chance Act violations and penalties can result in substantial financial consequences for non-compliant employers. The NYC Commission on Human Rights actively investigates complaints and has demonstrated willingness to impose significant penalties for violations.
Understanding the enforcement landscape helps employers appreciate the importance of comprehensive compliance programs and proper staff training on Fair Chance Act requirements.
2024 Enforcement Actions
Recent NYC employment law updates 2024 highlight the Commission’s aggressive enforcement approach. A pharmaceutical company paid $75,000 in civil penalties for using employment applications that informed candidates they would be subject to criminal background checks, violating the law’s pre-offer inquiry restrictions.
This case demonstrates that even seemingly minor violations—such as mentioning background checks on applications—can trigger substantial penalties. The Commission has consistently emphasized that any reference to criminal history before conditional offers violates the Fair Chance Act, regardless of whether employers actually ask specific questions.
Additional 2024 cases have involved employers who conducted premature background checks, failed to provide required individualized assessments, and implemented blanket policies excluding certain types of convictions without considering individual circumstances.
How Violations Are Investigated
NYC anti-discrimination enforcement typically begins with complaints filed by job seekers who believe they experienced Fair Chance Act violations. The Commission investigates these complaints thoroughly, often requesting detailed hiring records and interviewing multiple parties involved in the process.
Investigations may reveal systemic violations affecting multiple candidates, leading to broader enforcement actions and higher penalties. Employers who maintain detailed records of their hiring processes and can demonstrate good-faith compliance efforts typically fare better during investigations.
The Commission also conducts periodic audits of large employers and industries with high complaint volumes, making proactive compliance essential for all covered employers.
Background Check Exemptions for Certain NYC Jobs
While the Fair Chance Act provides broad protections, background check exemptions for certain positions recognize that some roles require immediate access to criminal history information due to public safety or security concerns.
Understanding these exemptions helps employers determine which positions follow standard Fair Chance procedures versus those with modified requirements.
Law Enforcement and Security Position Rules
Police and peace officers are completely exempt from Fair Chance Act protections, allowing employers to inquire about criminal history at any point during the hiring process. This exemption reflects the unique public safety responsibilities and legal requirements associated with law enforcement positions.
However, private security guards do not receive automatic exemptions and must follow standard Fair Chance Act procedures. This distinction often confuses employers who assume all security-related positions qualify for exemptions, but the law specifically limits exemptions to sworn law enforcement officers.
At Tremiti Law LLC, we help employers distinguish between exempt and non-exempt security positions, ensuring compliance while meeting legitimate security staffing needs throughout the five boroughs.
Executive Positions and Credit Check Exemptions
Certain executive-level positions may qualify for modified Fair Chance procedures, particularly when criminal history directly relates to fiduciary responsibilities or regulatory requirements. However, these exemptions are narrow and require careful legal analysis to apply correctly.
Credit check exemptions operate under separate legal frameworks but often intersect with Fair Chance Act compliance, creating complex scenarios for employers hiring for financial positions or roles requiring security clearances.
NYC Background Check Compliance for Employers
NYC employer compliance obligations extend beyond simply following the two-step process to encompass comprehensive policy development, staff training, and ongoing monitoring of hiring practices.
Effective compliance programs protect employers from violations while creating fair, efficient hiring processes that attract top talent across diverse candidate pools.
Creating Compliant Hiring Policies
Background check policy development should begin with thorough documentation of each step in your hiring process, from job posting through final hiring decisions. Policies must clearly specify when criminal background checks occur and how individualized assessments will be conducted.
Effective policies include specific language for job postings, application forms, and conditional offer letters that comply with Fair Chance Act requirements. They should also establish clear procedures for conducting Article 23-A analyses and documenting hiring decisions involving criminal history.
Regular policy reviews ensure continued compliance as enforcement interpretations evolve and new guidance emerges from the NYC Commission on Human Rights.
Training Requirements and Best Practices
NYC employer training requirements focus on educating hiring managers, HR staff, and anyone involved in recruitment about Fair Chance Act compliance. Training should cover prohibited practices, proper timing for background checks, and conducting individualized assessments.
Effective training programs include role-playing scenarios, real-world examples, and regular refresher sessions to reinforce key concepts. Documentation of training completion provides valuable evidence of good-faith compliance efforts during any enforcement proceedings.
Integration with Housing Background Check Laws
NYC’s Fair Chance Housing Act took effect January 1, 2025, establishing similar protections for tenant screening that mirror employment background check requirements. Employers who also manage rental properties must understand how these parallel laws interact and complement each other.
The housing law requires landlords to make conditional acceptance offers before conducting criminal background checks on prospective tenants, following the same basic principles as employment law but with housing-specific procedures and timelines.
Understanding both laws helps employers who engage in property management avoid violations while maintaining consistent fair chance practices across all their business activities.
Contact NYC Employment Law Attorneys for Fair Chance Act Compliance
Navigating NYC’s Fair Chance Act requirements requires expertise in both the legal framework and practical implementation strategies. From understanding the two-step background check process to conducting proper individualized assessments, compliance demands attention to detail and ongoing monitoring of evolving enforcement trends.
The attorneys provide comprehensive guidance to employers throughout Manhattan, Brooklyn, Queens, the Bronx, and Staten Island on all aspects of Fair Chance Act compliance. With deep experience in NYC employment law and proven strategies for policy development, training programs, and enforcement defense, we help businesses build fair hiring practices while protecting against costly violations. Contact us to discuss your Fair Chance Act compliance needs and ensure your hiring practices meet all current requirements.
