In New York City, employers cannot ask you about your criminal history until after they have made you a conditional job offer — and even then, they cannot simply reject you because you have a record. The NYC Fair Chance Act is one of the strongest “ban the box” laws in the country, and violations are enforceable through the NYC Commission on Human Rights with real remedies. This guide explains your rights, what employers can and cannot do, and how to fight back if your rights are violated.
What the NYC Fair Chance Act Prohibits
Under the NYC Fair Chance Act (Administrative Code Section 8-107(10)):
- Before a conditional offer: Employers cannot ask about, consider, or require disclosure of criminal history — no boxes on applications, no questions in interviews, no background checks
- Job postings: Employers cannot include language like “clean background required,” “no felonies,” or similar criminal history restrictions in job listings
- After a conditional offer — before withdrawal: The employer must conduct an individualized assessment and provide written notice before withdrawing the offer
The Article 23-A Analysis: What Employers Must Do After an Offer
After making a conditional offer and conducting a background check, if the employer wants to withdraw the offer based on criminal history, they must:
- Conduct an Article 23-A (Correction Law) analysis — weighing eight specific factors including: the nature and severity of the offense, the time elapsed since the offense, the age of the person at the time of the offense, whether the conviction relates to the job duties, evidence of rehabilitation, and the legitimate interest of the employer in protecting property or public safety
- Provide written notice to the applicant including: a copy of the background check, the employer’s analysis of the Article 23-A factors, and the specific reason for considering withdrawal
- Allow a minimum 5 business days for the applicant to respond with additional information before making a final decision
- If the employer proceeds with withdrawal after the applicant responds, provide written notice of the final decision
Limited Exceptions
The Fair Chance Act applies to most NYC employers with four or more employees. Limited exceptions exist for:
- Positions where state or federal law requires consideration of criminal history (certain childcare, elder care, and financial services positions)
- Law enforcement agencies
- Port Authority positions requiring criminal history review
These exceptions are narrow. Most private employers in NYC — retail, restaurants, construction, offices, healthcare workers, building services — are covered.
2021 Amendment: Expanding Fair Chance Protections
In 2021, NYC amended the Fair Chance Act to extend protections to current employees. Employers now cannot take adverse action against current employees based on criminal history (arrests, pending charges, or new convictions) without following the same individualized assessment process. This means an employer cannot fire you based on a new arrest without following the Article 23-A process first.
How to File a Fair Chance Act Complaint
If an employer violates the Fair Chance Act, file a complaint with the NYC Commission on Human Rights (CCHR):
- Online: nyc.gov/humanrights
- Phone: (212) 416-0197
- In person: CCHR offices at 22 Reade Street, Manhattan, and borough offices
- Deadline: File within 3 years of the violation
CCHR investigates complaints at no cost. Remedies for Fair Chance Act violations include back pay, compensatory damages, civil penalties paid to the city, and injunctive relief (ordering the employer to change their practices).
What to Document
If you suspect a Fair Chance Act violation, document everything immediately:
- Copy of the job application (screenshot if online) — look for any criminal history questions
- Screenshot of the job posting if it contained criminal history restrictions
- Notes on any interview questions about your record (date, who asked, exact words)
- Any written communications about withdrawal of a conditional offer
- Whether you received the required written notice and 5-day response period before final rejection
Free Legal Help
- NYC Commission on Human Rights: (212) 416-0197 — investigates and prosecutes violations at no cost to complainants
- Legal Aid Society: (212) 577-3300 — employment discrimination legal services
- Make the Road New York: (718) 565-8500 — worker rights advocacy including criminal record discrimination
- New York Legal Assistance Group (NYLAG): (212) 613-5000 — employment law assistance
Frequently Asked Questions
An employer asked about my criminal record in my interview before offering me the job. What can I do?
This is a likely Fair Chance Act violation. File a complaint with the NYC Commission on Human Rights at (212) 416-0197 within three years. Document the date, who asked, and exactly what was said. The Commission investigates at no cost to you.
Does the Fair Chance Act apply to gig economy jobs?
The Fair Chance Act applies to employment relationships. App-based gig companies have disputed whether their workers are employees or independent contractors — this affects coverage. However, NYC has expanded its human rights law to cover independent contractors in many contexts. Contact CCHR if you believe you were rejected as a gig worker due to criminal history.
I was rejected after a background check but the employer didn’t follow the Article 23-A process. What are my rights?
If the employer failed to provide the required written notice, the Article 23-A factors analysis, or the 5-day response period, they have violated the Fair Chance Act regardless of whether the underlying rejection was substantively justified. File a complaint with CCHR at (212) 416-0197. Procedural violations are independently actionable.
Can NYC landlords also be subject to fair chance rules?
NYC’s Human Rights Law limits how landlords can use criminal history in housing decisions — landlords cannot automatically deny housing based on arrest records or convictions without individualized assessment, and certain protected characteristics intersect with criminal history (race and criminal record discrimination is an active area of enforcement). Contact CCHR about housing discrimination involving criminal history.
