When Employers May Run Criminal Background Checks

New York City’s Fair Chance Act establishes a two-step screening process. First, employers generally must assess an applicant’s qualifications and complete noncriminal background screening. If the applicant is otherwise qualified, the employer may extend a conditional job offer. Only after that offer may the employer conduct criminal history screening.

This sequence is more than a timing rule. Employers generally cannot withdraw a conditional offer based on information that could reasonably have been evaluated before the offer. And waiting until the permitted stage does not, by itself, make every use of criminal history lawful.

The law also reaches questions on application forms. An employer generally cannot include criminal history questions in a standard employment application and tell New York City applicants to skip them. Unless an exception applies, having those questions on the form can itself violate the law, even if applicants are instructed not to answer.

This matters to employers that use the same application across multiple jurisdictions. A direction to skip the questions does not necessarily make their presence permissible. Employers should ensure the application and screening steps follow the required sequence: evaluate qualifications and complete noncriminal checks first, then conduct criminal history screening after a conditional offer.

Which Criminal Records Employers May Consider

The Fair Chance Act distinguishes among convictions, pending criminal cases and records protected from consideration. Employers may generally consider legally permissible convictions, but only after an individualized assessment under New York Correction Law Article 23-A. That assessment includes the nature of the offense, time elapsed, evidence of rehabilitation and the relationship between the conduct and the position.

Pending criminal cases are treated separately and require an assessment using New York City’s Fair Chance Factors. A conviction or pending case alone generally does not establish that someone presents an unreasonable risk.

Protected non-convictions are generally off-limits, even if they appear in a background report. The category includes dismissed cases, adjournments in contemplation of dismissal (ACDs), youthful offender adjudications, violations, certain sealed convictions and comparable outcomes from other jurisdictions. An ACD is generally a non-conviction rather than a pending case, unless it has been revoked and the case restored for prosecution. If an arrest resulted in a protected non-conviction, an employer generally cannot rely on it to justify withdrawing a conditional offer.

Individualized Assessments, Responses and Record Errors

Even when criminal history may legally be considered, employers generally must conduct an individualized assessment before taking adverse action. For convictions, this means weighing Article 23-A factors, including the nature of the offense, the time elapsed, evidence of rehabilitation and the relationship between the conduct and the position. If an employer relies on a direct relationship, it must connect the conduct to specific job duties and responsibilities; a conviction or pending case alone generally does not establish unreasonable risk.

Before reaching a final decision, employers considering adverse action must follow the Fair Chance Process: provide the applicant with the written assessment and supporting information, allow at least five business days after receipt to respond, and consider the applicant’s explanation.

If an applicant or employee identifies a material error in criminal history used in the assessment, the employer must complete a new Fair Chance Employment Analysis before taking adverse action. Employers must also consider relevant information submitted during the response period, even if it does not require reassessment.

A mismatch between self-reported history and a background check does not automatically prove intentional misrepresentation. Before taking adverse action on that basis, employers must provide supporting information, allow at least five business days for a response, and evaluate the individual’s explanation and the circumstances, including a possible misunderstanding about a record’s legal status.

Employee Protections, Enforcement and Employer Takeaways

The Fair Chance Act’s protections extend to current employees. When considering certain criminal history involving an existing employee, employers must follow applicable assessment and notice requirements. During an investigation, an employer may place an employee on unpaid leave for a reasonable period, but leave exceeding five business days is presumed unreasonable. A longer period may be justified by the circumstances; however, extended unpaid leave may itself be an adverse employment action.

The updated regulations also end the Commission’s early resolution process for complaints it initiates under the Fair Chance Act. Those complaints will proceed under the Commission’s general enforcement framework. The rules expressly identify certain prohibited practices as violations, including pre-offer criminal history inquiries and failing to reassess materially incorrect records.

Employers should review hiring materials and procedures before the regulations take effect on October 30, 2026. Check that applications do not include prohibited criminal history questions, protected records are excluded from consideration, and assessments address the position’s specific duties. Review procedures for giving applicants a meaningful chance to respond and for handling criminal history involving current employees. These steps can help employers identify gaps before the effective date and ensure decisions follow the required assessment and notice process.