The Fair Chance Act & Employment

The Fair Chance Act (FCA) became effective in 2015 as part of the New York City Human Rights Law (NYCHRL) and was strengthened in 2021 by an amendment to the Administrative Code of the City of New York by Local Law 4. Under the FCA, it is illegal for employers, labor organizations, and employment agencies to ask about a candidate’s criminal history in job applications or interviews, or to consider an applicant’s criminal history before making a job offer.

Local Law 4 explicitly prohibits discrimination based on a person’s arrest record, pending criminal accusations, or criminal convictions, and applies to both pre- and post-employment actions. The definition of an employer does not include an employer that has fewer than four employees. There are also restrictions on an employer’s inquiries into sealed convictions, youthful offender matters, or non-criminal violations. However, the law does not apply to applicants for employment as police officers, peace officers, and other roles involving “the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”

Employer’s Pre-Employment Responsibilities

An employer cannot include language such as “clean record required” or “no priors” In their hiring ads or on their application. It is unlawful and a discriminatory practice for most employers to ask or consider the criminal history of job applicants until after extending a “conditional offer of employment.” This means that in some cases, a criminal background may be used to withdraw the offer.

An applicant may voluntarily tell the prospective employer about their criminal history. If so, the employer must inform the applicant that any consideration of their criminal record will happen only after being offered the job.

After the employer has reviewed the application, work experience, education, references and made a conditional offer of employment, only then may the employer ask about criminal convictions or any pending criminal cases, do a background check of the applicant’s criminal record, and ask the applicant about the circumstances of the criminal history.

If an employer wants to withdraw an offer, the employer must first complete 3 steps:

(1) Evaluate the applicant according to the factors required by § 753 Art. 23 of New York’s Correction Law (Art. 23). Some of these factors include whether the crime or criminal offense committed will have any effect on the applicant’s ability to perform the job duties, the age of the applicant at the time of the criminal offense or conviction, the time that has passed since the criminal offense or conviction, and evidence of rehabilitation. Examples of rehabilitative factors may include job references, job training programs, the pursuit of and completion of educational degrees.

(2) Give the applicant a copy of the background check/report.

(3) Hold the job open for at least five business days to allow the applicant to respond.

An employer can reject an application due to a prior conviction when there is a direct relationship between the prior offense and the specific employment sought and when the employment would involve an unreasonable risk to property or the safety of specific individuals or the public.

Examples of when a conditional offer of employment may be withdrawn after applying Art. 23 factors:

• If the applicant was previously convicted of robbing a bank and later applies for a job working as a teller in a bank. This is an example of a criminal conviction that is directly related to the duties of the position (handling of money).
• If the applicant was convicted of a sexual offense and is registered as a sex offender and later applies to work in a daycare. The daycare will be required to deny employment because state law prohibits sex offenders from working with children and the FCA does not apply.
• If an applicant was convicted of possession of drugs with intent to distribute and later applies to work in a pharmacy, the employer may deny employment when considering that the responsibilities include handling drugs.

Examples of when a conditional offer may not justify withdrawal after applying Art. 23 factors:

• An applicant is convicted of robbery and later applies for a job as a porter in a building or in a restaurant working in the kitchen. In these examples, the applicant’s responsibilities for cleaning and food preparation are not directly related to the conviction, and the employer may hire the applicant.
• An applicant was convicted of an assault and applies to become a truck driver. If the applicant has a valid driver’s license and meets all other job requirements, the duties involved, such as loading/unloading a truck and making deliveries, are unrelated to the offense.

Employer Handling of Arrests and Convictions of Current Employees

The laws apply to current employees. An employer is not permitted to discipline or terminate an employee based on a pending criminal case or conviction. An employer must conduct the same examination and apply the same factors as outlined above.

An employer may only terminate an employee if there is a direct relationship between the employee’s pending criminal case or conviction and the job functions or if the employer can show that continuing the employment poses an unreasonable risk to its property or the safety of the individuals that come into contact with the employee.

An employer may place the employee on a leave of absence for no longer than five business days while conducting the FCA analysis, follow the same requirements as outlined above and provide the employee with a written determination detailing the basis for the adverse employment action.

Employer’s Concern About Negligent Hiring Lawsuits

A negligent hiring lawsuit is brought by a person that sues an employer claiming injuries by an employee and alleges that the injuries could have been avoided if the employer had conducted a reasonable background check or not hired by the employee.

Employers may use the FCA and Local Law 4 as defenses by presenting evidence demonstrating they made a good faith, reasonable determination using the required factors to support the employer’s hiring decision.

The FCA and Local Law 4 were enacted based on New York’s public policy to encourage employers to hire people with criminal convictions. Because of this public policy and if an employer followed the analysis and requirements of the laws, there is a strong presumption in favor of the employer that it did not hire the employee unreasonably and the employee’s prior conviction may be excluded from evidence of the alleged negligent hiring. This is an important protection for employers because without evidence of the conviction, a person making a claim for negligent hiring may have a hard time proving their case.

Last Updated January 2026