Note: This guidance has been updated to reflect amendments to the New York City Human Rights Law under Local Law 4 (2021), which took effect July 29, 2021.
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The New York City Human Rights Law ("NYCHRL") prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based profiling by law enforcement. Pursuant to the 2005 Civil Rights Restoration Act, the NYCHRL must be construed "independently from similar or identical provisions of New York state or federal statutes," such that "similarly worded provisions of federal and state civil rights laws [are] a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise."1
The New York City Commission on Human Rights (the "Commission") is the City agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission's Law Enforcement Bureau within one (1) year of the discriminatory act, or if the complaint concerns alleged gender-based harassment, within three (3) years of the discriminatory act. Alternatively, a complaint may be filed in New York State Supreme Court within three (3) years of the discriminatory act. The portions of the NYCHRL discussed in this guidance apply to employers with four or more employees. Exemptions are discussed in Part IX.
The NYCHRL provides protections for people with a record of criminal system involvement in the areas of employment, licensure, and credit.2 This Guidance focuses on protections in employment. Broadly, the NYCHRL establishes two categories of employment protections based on a person's history of criminal system involvement. First, the NYCHRL prohibits most employers from ever asking about or taking action against a worker for certain types of low-level or sealed cases and cases with favorable outcomes for the defendant (cases that this Guidance defines as "non-convictions"). Second, the NYCHRL provides "fair chance" protections to workers with criminal convictions and pending cases, limiting when and to what extent most employers may consider workers' criminal history and ensuring that workers are not arbitrarily disciplined or excluded from employment opportunities when they do not pose an unreasonable risk of harm and there is no direct relationship between their criminal history and the job. Protections under the NYCHRL "relating to employees apply to interns, freelancers and independent contractors."3
II Legislative History and Intent
The NYCHRL protects workers against arbitrary denials of employment opportunities based on criminal history and ensures that job applicants are considered based on their qualifications before their criminal history. These protections reduce collateral employment consequences for New Yorkers who have been arrested or convicted of a crime, helping to level the playing field, particularly for communities that are disproportionately impacted by the criminal legal system, such as people of color and LGBTQ people.4 In addition, by providing comparable protections for pending cases and convictions, the NYCHRL empowers the legally innocent to defend themselves in court without fear that doing so will hinder their employment prospects.5
The Commission has protected workers against employment discrimination based on criminal history since 1977, sharing joint enforcement authority over Correction Law Article 23-A with the New York State Division of Human Rights.6 The protections of Article 23-A, which were expressly incorporated into the NYCHRL in 1991,7 prevent employers from arbitrarily denying an applicant a job based on a criminal conviction.8 An employer is prohibited from rejecting an otherwise qualified job applicant because of their conviction record unless there is a direct relationship between the conviction and the job or an unreasonable risk to people or property, taking into account specific considerations—such as the recency and severity of the offense, its relationship to the nature of the job, and evidence of rehabilitation.9 The NYCHRL also incorporates protections set forth in the New York State Human Rights Law § 296(16), related to an applicant's record of arrests in non-pending cases that resolved in the person's favor; youthful offender adjudications; sealed cases; and cases adjourned in contemplation of dismissal ("ACDs").10
The Fair Chance Act ("FCA") was added to the NYCHRL on October 27, 2015, because the City determined that, despite the requirement that employers must fairly assess candidates under Article 23-A of the Correction Law, many employers were disregarding candidates who disclosed criminal histories early in the hiring process. The FCA makes it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants prior to extending a conditional offer of employment. The FCA also requires employers seeking to withdraw a conditional job offer based on the applicant's conviction history to provide the applicant a meaningful opportunity to respond to the employer's assessment before the employer finalizes its decision.
Local Law 4 of 2021, effective July 29, 2021, adds new protections for people whose criminal history includes unsealed violations and unsealed non-criminal offenses.11 Local Law 4 also expands the protections of the Fair Chance Act to cover current employees and to reach pending cases.12
III Definitions and Rules of Construction
Any time this Guidance or related provisions of the NYCHRL or Rules of the City of New York ("RCNY") concerning protections based on criminal history require notices and disclosures to be printed or in writing, they may also be communicated by email, if such method of communication is mutually agreed on in advance by the employer and the applicant or employee.
For the purpose of this Guidance, key terms are defined as follows:
Applicant - A person seeking initial employment or a current employee who is seeking or being considered for promotion or transfer.13
Article 23-A Factors14 - The factors that employers must consider concerning applicants' and employees' pre-employment criminal conviction histories under section 753 of Article 23-A of the New York Correction Law. These factors are:
Conditional Offer of Employment - An offer of employment, promotion or transfer which may only be revoked based on one of the following:
For temporary help firms, a conditional offer is the offer to place an applicant in the firm's labor pool, which is the group of individuals from which the firm selects candidates to send for job opportunities.
Conviction History - Records of an individual's conviction of a felony or misdemeanor as defines by New York law17, federal law, or the law of the state in which the individual was convicted.18
Criminal Background Check - When an employer, employment agency or agent thereof orally or in writing either:
Criminal History - Records of an individual's convictions or non-convictions, including arrests or currently pending criminal cases.20
Employer - An employer as defined by N.Y.C. Administrative Code § 8-102.
Fair Chance Analysis - The process for evaluating convictions and pending cases as required by N.Y.C. Administrative Code § 8-107(10), which is based on the Article 23-A Factors when analyzing a person's convictions that occurred prior to the start of their employment and on the New York City Fair Chance Factors when analyzing convictions that occur during a person's employment or cases that are pending.
Fair Chance Process - The post-conditional offer process required by N.Y.C. Administrative Code § 8-107(11-a), when, based on a person's pending case or conviction history, an employer elects to withdraw a conditional offer of employment, deny a promotion or transfer, or take other adverse employment action. Key components of the Fair Chance Process include requesting from the applicant or employee information that is necessary to conduct the Fair Chance Analysis; carrying out the Fair Chance Analysis; providing the applicant or employee with a written copy of the Fair Chance Analysis and inquiry; and providing the applicant or employee the opportunity to respond.
Inquiry - Any oral or written question asked for the purpose of obtaining a person's criminal history, including without limitation questions in a job interview about an applicant's criminal history and any search for a person's criminal history, including through the services of a third party, such as a consumer reporting agency.21
Non-conviction - A criminal action that has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56, 210.46, 210.47, or 215.10 of the New York Criminal Procedure Law ("CPL") unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution,22 or a criminal action that is not currently pending and was concluded in one of the following ways:
"Non-conviction" includes a disposition of a criminal matter under federal law or the law of another state that results in a status comparable to a "non-conviction" under New York law as defined here.
A non-exhaustive list of the types of criminal histories that qualify as non-convictions is provided in Part IV.
NYC Fair Chance Factors - The factors employers must consider before making an employment decision, in the case of job applicants, based on pending cases at the time of their application for employment and, in the case of employees, based on pending cases or convictions that occur during employment. These factors are:
Pending Case - A criminal action that has not been concluded at the time of the employer's Fair Chance Analysis. An action that has been adjourned in contemplation of dismissal shall not be considered a pending case unless, prior to the time of the employer's assessment, the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution.
Relevant Fair Chance Factors - The factors employers must consider before making an employment decision based on an applicant's or employee's criminal history. With respect to arrests or convictions preceding employment, other than arrests or criminal accusations pending at the time of application for employment, this means the Article 23-A Factors. With respect to arrests or criminal accusations pending at the time of an application for employment and arrests or convictions that have occurred during employment, this means the NYC Fair Chance Factors.
Statement - Any communications made, orally or in writing, to a person for the purpose of obtaining criminal history, including without limitation stating that a background check is required for a position.23
Temporary Help Firms - Businesses that recruit, hire, and assign their own employees to perform work or services for other organizations to support or supplement the other organization's workforce or to provide assistance in special work situations such as, without limitation, employee absences, skill shortages, seasonal workloads, or special assignments or projects.24
IV Non-convictions are Completely Protected
Unless specifically required or permitted by law, all private employers and most public-sector employers are prohibited from seeking information about, expressing or implying an employment limitation related to, or basing an adverse employment action on, a person's non-conviction.25
A non-exhaustive list of the types of criminal histories that qualify as non-convictions includes the following:26
Employers should review Part V(C) below for recommendations about how to permissibly ask about a person's conviction history without violating the NYCHRL's prohibition on inquiries about non-convictions. Employers are prohibited from disqualifying an applicant from prospective employment based on their refusal to respond to an illegal question about non-convictions.44
V Additional Protections for Job Applicants During the Hiring Process
During the hiring process, the NYCHRL prohibits employers from making statements related to criminal history in job postings and recruitment materials. For example, employers must not say "criminal background check required" or "no felonies."
The NYCHRL also prohibits employers from asking about or considering information about an applicant's conviction history or pending cases until after the employer has assessed all other job qualifications and made a conditional offer of employment to the applicant. After the conditional offer, employers who wish to withdraw the conditional offer based on the applicant's criminal history must comply with specific requirements of the Fair Chance Process and can only withdraw the offer in limited circumstances.
This section discusses in greater detail the specific requirements that employers must follow if they wish to consider conviction histories or pending cases during the hiring process.
Before a Conditional Offer
Unless an exemption applies, criminal history may not be sought or considered by employers before a conditional offer of employment. The employer's focus during this period must instead be on an applicant's qualifications. The following are examples of common hiring practices that are affected by the NYCHRL's protections for applicants and employees with criminal histories.
Solicitations, Advertisements, and Publications for Employment Cannot Mention Criminal History
Employers are prohibited from expressing any limitation or specification based on criminal history in their job advertisements.45 Ads cannot say, for example, "no felonies," "background check required," or "clean records only." Solicitations, advertisements, and publications encompass a broad variety of items, including, but not limited to, employment applications, fliers, handouts, online job postings, and materials distributed or statements made at employment fairs and by temporary help firms and job readiness organizations.
Solicitations, advertisements, and publications may include people-first language that welcomes those with criminal records to apply. For example, permissible language includes "People with criminal histories are encouraged to apply," and "We value diverse experiences, including prior contact with the criminal legal system." Employers should avoid using stigmatizing and dehumanizing language, like "ex-felon" and "former inmate."46
In general, employers are not permitted to make unsolicited neutral statements about criminal background checks before a conditional offer, including statements noting the employer's compliance with laws protecting applicants with criminal histories (such as "Applicants' criminal history will be considered consistent with the requirements of the New York City Fair Chance Act.").
Employers Cannot Inquire About Criminal History During the Interview Process
Unless an exemption applies, the NYCHRL prohibits employers from making any inquiry or statement related to an applicant's criminal history until after a conditional offer of employment. Examples of prohibited statements and inquiries include, but are not limited to:
The NYCHRL does not prevent employers from looking into other aspects of an applicant's background and experience to verify their qualifications for a position, including asking for resumes and references and performing general internet searches (e.g., Google, LinkedIn, etc.). Searching an applicant's name is legal, but trying to discover an applicant's conviction history is not. In connection with an applicant, employers cannot search for terms such as "arrest," "mugshot," "warrant," "criminal," "conviction," "jail," or "prison." Nor can employers search websites that contain or purport to contain arrest, warrant, conviction, or incarceration information for the purpose of obtaining an applicant's criminal history prior to a conditional offer.
The NYCHRL allows an applicant to refuse to respond to any prohibited inquiry or statement. Employers are prohibited from disqualifying an applicant from prospective employment based on their refusal to respond to an illegal question about criminal history.47
Inadvertent Disclosures of Criminal Record Information Before a Conditional Offer of Employment Do Not Create Employer LiabilityPrior to a conditional offer, the NYCHRL prohibits any inquiry or statement made for the purpose of obtaining an applicant's criminal history. If a legitimate inquiry not made for that purpose leads to the inadvertent revelation of an applicant's criminal history, the employer should continue its hiring process and must not examine the applicant's conviction history information until after deciding whether or not to make a conditional offer of employment.
If the applicant raises their criminal record voluntarily, the employer should not use that as an opportunity to explore an applicant's criminal history further. The employer should state that, by law, it will only consider the applicant's record if it decides to make them a conditional offer of a job. Similarly, if an applicant asks an employer during the interview if they will be subject to a criminal background check, the employer may state that a criminal background check will be conducted only after a conditional offer of employment (though employers may, of course, hire applicants without performing a criminal background check at all). The employer must then move the conversation to a different topic. Employers who make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the NYCHRL.
The Conditional Offer of Employment
Under the NYCHRL, a conditional offer is conditioned on the results of a criminal background check and, if applicable, the results of a medical exam as permitted by the Americans with Disabilities Act ("ADA").48 This review constitutes the last step of the hiring process. Employers cannot circumvent the requirements of the NYCHRL by calling an offer "conditional" before they have assessed all other employment qualification factors (e.g., academic records or references) aside from criminal history and medical information. The duties and responsibilities for a job should be clearly defined before a conditional offer is extended and there is a rebuttable presumption that an employer that alters the job's duties and responsibilities in a manner that serves to disqualify the applicant after making a conditional offer of employment has done so as a pretextual basis for unlawful discrimination.
Employers can only request and review criminal history information after favorably evaluating the candidate's non-criminal information. Employers who request consumer reports on applicants should first receive the non-criminal information, evaluate it, and then receive and evaluate the criminal information. Receiving the information in two stages, non-criminal information before the conditional offer and criminal information after, also insulates the employer from liability for criminal history discrimination if it disqualifies a candidate with criminal history at the first stage. Employers who face a substantial impediment to obtaining two consumer reports can comply with the NYCHRL by establishing a system to internally segregate criminal history information to ensure that it is available to decisionmakers only after a conditional offer has been made. Employers who take this route bear the burden of proving that the criminal information was inaccessible to decisionmakers until after a conditional offer. They are also responsible for ensuring that they create processes that comply with other laws governing the collection and use of personal information, such as the Federal and State Fair Credit Reporting Acts.49
The NYCHRL does not prohibit employers from considering non-criminal information after a conditional offer if the employer can show as an affirmative defense, by a preponderance of the evidence, that (1) the employer could not have reasonably known the information before the conditional offer and (2) regardless of the results of the criminal background check, the employer would not have made the offer if it had known the information before the offer was extended. Information could reasonably have been known before a conditional offer if the information existed prior to the conditional offer and could have been obtained by an employer exercising reasonable due diligence.
Because it is often impracticable to separate criminal and non-criminal information contained in a driving abstract, employers must not review driving abstracts until after a conditional offer has been extended. The employer may treat non-criminal information on the driving abstract as a form of non-criminal information that the employer could not have reasonably known before the conditional offer.
After the Conditional Offer of Employment
After extending a conditional offer of employment, as defined in Part III of this Guidance, an employer may, if it chooses, then inquire about an applicant's conviction history or any pending cases against the applicant. An employer may:
Employers must never inquire about or act on non-conviction information.52 To guard against soliciting or considering non-conviction information, employers may frame inquiries by using the following language after a conditional offer is made:
Have you ever been convicted of a misdemeanor or felony? Answer "NO" if you received an adjournment in contemplation of dismissal ("ACD") that has not been revoked and restored to the calendar for further prosecution or if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as "disorderly conduct;" (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.
If an employer wishes to proceed with hiring the applicant after learning about their criminal history, it may do so and nothing further is required under the NYCHRL. However, if an employer wishes to reconsider its conditional offer based on an applicant's conviction history or pending case, it must do so in accordance with the Fair Chance Process, as discussed in further detail below. There is a rebuttable presumption that an employer that revokes a conditional offer after conducting a criminal background check but without following the Fair Chance Process acted with discriminatory motive based on the applicant's criminal record.
Evaluating the Applicant Using the Fair Chance Analysis
If an employer is considering withdrawing a conditional offer of employment based on a criminal background check, it should gather the information necessary to assess each of the relevant fair chance factors, for example by requesting evidence of rehabilitation or good conduct from the candidate and confirming the applicant's date of birth as relevant to consideration of the person's age when the alleged or convicted crime occurred. An employer cannot deny employment based on an applicant's conviction history or pending case unless, after conducting an analysis of the relevant fair chance factors, it properly:
An employer who declines to hire an applicant based on the applicant's conviction history or pending criminal case and does not meet either exception noted above will be liable for discrimination under the NYCHRL. An employer cannot simply presume that a direct relationship or unreasonable risk exists because the applicant has a criminal record.54 Instead, the employer must analyze the applicant's prior conviction history based on the Article 23-A Factors and analyze any currently pending cases against the applicant under the NYC Fair Chance Factors (which are similar but not identical to the Article 23-A Factors). If an applicant has both a conviction history and a pending case, the employer must separately analyze each according to the relevant set of factors required under the law.
To properly establish a direct relationship between an applicant's criminal record and the job, the employer must show a connection between the specific nature of the alleged conduct in a pending case or convicted conduct and the specific nature of the job.55 An employer may not reject an applicant based on a perceived lack of good moral character because of the applicant's criminal history without having complied with the Fair Chance Process.56 If a direct relationship exists between the applicant's criminal history and the job, the employer must still determine, based on the Article 23-A Factors or the NYC Fair Chance Factors, as applicable, whether the concerns presented by the direct relationship have been mitigated, for example by the passage of time and evidence of good conduct or rehabilitation.57
To properly establish that there is an unreasonable risk, an employer must begin by assuming that no risk exists and then show how the relevant fair chance factors combine to create an unreasonable risk to people or property.58
The Article 23-A Factors applicable to conviction history are:
The NYC Fair Chance Factors applicable to pending cases are:
The Commission will review employers' adverse employment decisions to ensure that they correctly consider the relevant fair chance factors and do not disqualify applicants in the absence of a direct relationship between the criminal history and the job or an unreasonable risk. The Commission will begin with the purpose of the NYCHRL: "to overcome stigma toward" and the "unnecessary exclusion" from employment of people with criminal system involvement.61 The Commission will also consider relevant case law interpreting Article 23-A and applicable provisions of the NYCHRL.62 Employers must make a reasoned evaluation of each relevant fair chance factor;63 they cannot ignore evidence favorable to the applicant;64 and they cannot simply engage in a pro forma review of the relevant fair chance factors.65 Employers should consider applicants' successful performance of their job duties in past employment, along with evidence, in the case of convictions, that they have addressed the causes of their criminal activity.66 The Commission will presume that any negative non-criminal information known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer once the employer is aware of an applicant's criminal history.
Withdrawing an Offer Pursuant to the Fair Chance Process
If, after evaluating the applicant according to the relevant fair chance factors, an employer wishes to withdraw an offer of employment because the employer properly finds a direct relationship between the criminal record and the job or an unreasonable risk to people or property, it must follow the Fair Chance Process:
These steps are discussed in further detail below.
Disclosing the Inquiry
The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an applicant has a criminal record, along with the date and time the employer accessed the information. The applicant must be able to see and challenge the same criminal history information relied on by the employer.
Employers who hire consumer reporting agencies to conduct background checks can fulfill this obligation by supplying a copy of the consumer reporting agency's report about the applicant.67 Consumer reporting agencies must ensure that they do not aid or abet employment discrimination based on criminal history, in violation of the NYCHRL. For example, a consumer reporting agency would be liable for aiding and abetting discrimination if it advised an employer to approve or deny an applicant based on a list of specified conviction histories that the employer wishes to categorically exclude, because doing so would unlawfully deny the applicant an individualized assessment of their conviction history and violate the Fair Chance Process.
Employers who rely on criminal record information from sources other than a consumer report must also give that information to the applicant. Employers who search the internet to obtain criminal histories must print out the pages they relied on, and such printouts must identify their source so that the applicant can verify or contest them. Employers who check public records must provide copies of those records. Employers who rely on oral information must provide a written summary of the portion of their conversation that relates to criminal history.
Providing the Fair Chance Notice
The NYCHRL directs the Commission to determine the manner in which employers inform applicants about their Fair Chance Analysis.68 The Commission has prepared a Fair Chance Notice (the "Notice")69 that employers may use to comply with this requirement. As long as the material substance concerning the specific factors in the Fair Chance Analysis does not change, the Notice may be adapted to an employer's preferred format.
The Notice informs the applicant of their time to respond, which must be reasonable and no fewer than five business days, and provides contact information for the person to whom the response must be sent, including the contact person's phone number or email address.
The Notice requires employers to evaluate each relevant fair chance factor and state whether the employer has identified a direct relationship to the job or an unreasonable risk to people or property. The Notice also contains space where the employer must articulate its conclusion.70 Boilerplate denials that simply list the relevant fair chance factors violate the NYCHRL. For example, an employer cannot simply say it considered the time since the alleged or convicted criminal conduct; it must identify how many years and/or months have elapsed. An employer also cannot list specific facts but then fail to describe how, based upon those facts, it concluded that the applicant's record evidenced either a direct relationship to the job or an unreasonable risk to people or property. Rather, the employer must explain how its weighing of all of the factors in the Fair Chance Analysis contributed to its determination to withdraw the conditional offer.
Finally, the Notice requests evidence of good conduct and evidence of rehabilitation. The Notice provides examples of such information. Employers may identify specific examples of rehabilitation or good conduct that would be most relevant to its analysis, but examples must be included.
Allowing Time to Respond
Employers must give applicants a reasonable period of at least five business days to respond to the employer's inquiry and Notice. During this time, the employer may not permanently place another person in the applicant's prospective position. The five-day period begins running when an applicant receives both the inquiry and Notice. Employers may therefore wish to confirm receipt by disclosing the information in person, electronically, or by registered mail. The method of communication should be mutually agreed on in advance by the applicant and employer.
By giving an applicant a reasonable period of at least five business days to respond, the NYCHRL contemplates a process in which employers discuss their reasons for finding that an applicant's criminal record is directly related to the job or poses an unreasonable risk, so an applicant can respond orally or in writing and both address the employer's concerns and provide additional information about any of the relevant fair chance factors.71 It also provides the applicant an opportunity to address errors on the employer's background report, as discussed below.
After receiving additional information from an applicant, an employer must examine whether the new information changes the employer's Fair Chance Analysis. If, after communicating with an applicant, the employer decides not to hire them, it must relay that decision to the applicant in writing within a reasonable period of time.
Handling Errors in the Background Check
Errors on background checks are remarkably common.72 Errors can occur, for example, because the background check was run for the wrong person or because of recordkeeping errors by police, prosecutors, or the court.73 If an applicant identifies an error on the background report, they should promptly notify the employer and the employer must then conduct the Fair Chance Analysis based on the corrected criminal background information, to ensure its decision is not tainted by the previous error. As before, if the employer can show a direct relationship or unreasonable risk and intends to take an adverse action on that basis, it must follow the Fair Chance Process: the applicant must be given a copy of the corrected inquiry, the employer's Fair Chance Analysis, and a reasonable period of at least five business days to respond, with an opportunity to provide any additional information for the employer to review and re-examine its analysis.
Handling Applicants' Intentional Misrepresentations of Their Pending Cases or Conviction Histories
The NYCHRL does not prohibit an employer from disqualifying an applicant based on the applicant's intentional misrepresentation about their conviction history or pending cases. A misrepresentation is intentional if it is made with knowledge of its falsity and with intent or purpose to deceive. A covered employer may never, however, disqualify an applicant based on their representations about non-convictions.74
Where an employer properly bases its decision to deny employment on an intentional misrepresentation by the applicant, it is not required to perform the Fair Chance Analysis. Before disqualifying an applicant based on a perceived intentional misrepresentation, the employer is required to provide the applicant with a copy of any information that led the employer to believe that the applicant intentionally misrepresented their criminal record and afford the applicant a reasonable period of at least five business days to respond.75 If the applicant credibly demonstrates either that the information provided was not a misrepresentation or that a misrepresentation was unintentional, the employer is required to perform the Fair Chance Analysis before taking adverse action against the applicant.
Some discrepancies between an applicant's criminal background record and self-report of their criminal history may not constitute credible evidence of an intentional misrepresentation. Discrepancies can arise despite the absence of an intentional misrepresentation because, among other reasons, the applicant incorrectly assumed a conviction was too old to be considered or was not relevant to the employer's assessment or the job; the applicant confused the charge initially filed against them with the one for which they were convicted; or because of an error in the criminal history record. It is an employer's burden to credibly demonstrate that any discrepancy on which they wish to rely as a basis for disqualifying an applicant is attributable to an intentional misrepresentation. Employers who improperly invoke intentional misrepresentation as a pretextual basis for failing to comply with the Fair Chance Process violate the NYCHRL.
VI Additional Protections for Employees After Hire
The NYCHRL also protects current employees from arbitrary and unfair discipline, including termination, based on a conviction history or pending case. The protections are similar to those for job applicants.
Evaluating the Employee Using the Fair Chance Analysis
An employer cannot discipline or terminate a current employee based on their conviction history or pending case unless, after conducting a Fair Chance Analysis, the employer properly:
The employer must analyze any convictions that predate the person's employment based on the Article 23‑A Factors and must analyze any pending cases and convictions that occur during the person's employment based on the NYC Fair Chance Factors (which are similar but not identical to the Article 23-A Factors). For more information about the Fair Chance Analysis, see Part V(D).
The Commission will review employers' adverse employment decisions to ensure that they correctly perform the Fair Chance Analysis and do not discipline employees based on their criminal record in the absence of a proper determination of a direct relationship of the criminal record to the job or an unreasonable risk. As discussed above, employers must make a reasoned evaluation of each relevant fair chance factor;77 they cannot ignore evidence favorable to the applicant;78 and they cannot simply engage in a pro forma review of the relevant fair chance factors.79 Among other things, employers should consider employees' successful performance of their job duties as evidence of good conduct.80
Complying with the Fair Chance Process for Current Employees
If, after completing the Fair Chance Analysis, an employer wishes to discipline or terminate an employee because it has identified a direct relationship between the criminal record and the job or an unreasonable risk to people or property, the employer must follow the Fair Chance Process. As with job applicants, discussed in Part V(E), the employer is required to:
The NYCHRL does not prohibit the employer from placing the employee on leave for a reasonable period of time while it conducts the Fair Chance Process, as explained in further detail below.
Placing the Employee on Leave (Optional)
An employer is permitted, but not required, to place an employee on temporary leave while it undertakes the Fair Chance Process.81 If the employee has accrued leave time, they should be permitted to use that time consistent with the employer's regular leave policies. If paid leave is unavailable, the employer may place the employee on unpaid leave while it completes the Fair Chance Process. However, an employer will be liable for violating the NYCHRL if it unnecessarily prolongs the Fair Chance Process while keeping an employee on leave because the employer will be deemed to have taken an adverse action based on criminal history prior to the employer having completed the Fair Chance Process. Though the determination of whether the Fair Chance Process was completed in a reasonable amount of time is a fact-specific inquiry, there is a presumption that delays in excess of five business days, from the time the person is placed on leave to the time they receive the Fair Chance Notice from the employer, are unreasonable. It is the employer's burden to show that any delay in excess of five business days was reasonable under the circumstances.
Disclosing the Inquiry
The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an employee has a criminal record, along with the date and time the employer accessed the information. For more details about this process, see Part V(E)(i).
Providing the Fair Chance Notice
Employers are required to provide employees with a written copy of the Fair Chance Notice before taking any adverse action. For more details about the Notice and how it must be completed, see Part V(E)(ii).
Allowing Time to Respond
Employers must give employees a reasonable period of at least five business days to respond to the employer's inquiry and Notice. During this time, the employer may not permanently place another person in the employee's position or take any final disciplinary or adverse action against the employee. This time period begins running when the employee receives both the inquiry and Notice. See Part V(E)(iii) for more information.
Handling Errors in the Background Check and Employees' Intentional Misrepresentations of Their Criminal Histories
See Part V(E)(iv) for how to handle errors in a background check that are identified during the Fair Chance Process and Part V(E)(v) for how to handle intentional misrepresentations by employees about their criminal history.
VII Per Se Violations of the NYCHRL
The following acts are distinct, chargeable violations of the NYCHRL:
The Commission's rules provide an early resolution process for handling cases involving per se violations of the provisions of the NYCHRL that protect against discrimination based on criminal history.82 If the Law Enforcement Bureau determines that early resolution of a per se violation is in the public interest and permissible under the Commission's rules, it will send the respondent an early resolution notice, along with a copy of the complaint, and provide the respondent with the opportunity to enter an expedited settlement, under which it will admit guilt and agree to undergo a mandatory free training from the Commission, post a notice of rights under the NYCHRL, and pay a fine under the penalty schedule set forth in the Commission's rules.83 Only Commission-initiated complaints may be resolved through the early resolution process, and reaching a resolution does not preclude an individual complainant from filing an independent complaint with the Commission or in court.84
VIII Temporary Help Firms Under the Fair Chance Act
Temporary help firms employ individuals, either as direct or joint employers, and place them in job assignments at the firms' clients. The NYCHRL applies the same way to temporary help firms as it does to any other employer. The only difference is that, for temporary help firms that vet candidates for multiple potential temporary employment placements at a single time, a conditional offer of employment is an offer to place an applicant in the firm's labor pool, from which the applicant may be sent on job assignments to the firm's clients. Before a temporary help firm withdraws a conditional offer of employment after discovering an applicant's conviction history, it must follow the Fair Chance Process, according to Part V(E) of this Guidance. For applicants placed in a labor pool, the temporary help firm should only consider the basic skills necessary to be placed in the pool when evaluating the job duties in its Fair Chance Analysis.
Employers who accept placements from temporary help firms and who wish to inquire about temporary workers' criminal histories must also follow the Fair Chance Process. They may not make any statements or inquiries about an applicant's criminal record until after the worker is assigned to the employer and they must follow the Fair Chance Process if they wish to decline employment because of an applicant's criminal record.
As with any other type of discrimination, temporary help firms will be liable if they aid and abet an employer's discriminatory hiring preferences. For example, a temporary help firm cannot, based on an employer's instructions, refer only temporary workers who do not have criminal histories or who have "less serious" criminal histories. They also may not disclose a worker's criminal history to an employer until the employer has completed its evaluation of the worker's non-criminal attributes.
IX Positions and Actions Exempt from Certain Protections Under the NYCHRL
Consistent with the Local Civil Rights Restoration Act of 2005, all exemptions to coverage under the NYCHRL's anti-discrimination provisions must be construed narrowly.85 Employers who invoke an exemption to defend against liability have the burden of proving the exemption by a preponderance of the evidence. Other than the employers described in Subparts C and D of this Part, the Commission does not assume that an entire employer or industry is exempt and will investigate how an exemption applies to a particular position or role. Positions that are exempt from some or all of the NYCHRL's procedural requirements under § 8-107(11-a) are not necessarily exempt from the law's substantive protections against discrimination based on criminal history under § 8-107(10) or § 8-107(11).
Actions Taken Pursuant to Federal, State, or Local Law Requiring Criminal Background Checks or Barring Employment Based on Certain Criminal Histories
A network of federal, state, and local laws creates employment barriers for people with criminal records. The Commission characterizes these barriers as either mandatory or discretionary. Mandatory barriers require an employer to deny applicants or take designated action against employees with certain specified criminal histories and afford no discretion to the employer. Employers should bear in mind that a mandatory legal bar often can be removed by an executive pardon removing the disability, a certificate of relief from disabilities, or a certificate of good conduct. Discretionary barriers allow, but do not require, an employer to deny applicants with criminal records and may or may not enumerate presumptively disqualifying criminal histories.
The NYCHRL's protections based on criminal history control when an employment-related action of an employer who is not exempt, as described Subparts C and D, is discretionary, meaning it is not explicitly mandated by law. Employers who are not exempt and who employ a mix of workers, some of whom are covered by a mandatory barrier and some of whom are not, must follow the Fair Chance Process for positions that are not subject to a mandatory barrier.
The NYCHRL's protections based on criminal history apply when an employer who is not exempt hires people who require licensure or approval by a government agency, even if the license or approval has mandatory legal barriers. In that case, prior to a conditional offer an employer can only ask and give consideration to whether an applicant has the required license or can obtain one within an acceptable period of time. An inquiry into an applicant's criminal record before a conditional offer of employment is not allowed, unless one of the exceptions discussed below applies. An applicant who cannot obtain a required license because of their conviction record may have their conditional offer withdrawn or employment terminated for such legitimate nondiscriminatory reason. Employers may require employees to provide periodic proof of licensure and/or to notify the employer of any change of status to their licensure.
Legally Mandated Background Checks
If a federal, state, or local law requires an employer to perform a criminal background check, the employer is still required to undertake all other actions required by the NYCHRL that are not in conflict with the requirements of the federal, state or local law.86 Unless the employer is explicitly required or permitted by another law to state in a job posting that a background check is required, the employer is prohibited by the NYCHRL from doing so in a job advertisement.87 The employer may, however, advise applicants once they apply for a position that a background check is required and will be conducted prior to a conditional offer of employment. The employer must notify the applicant of the specific legal basis for the required criminal background check when invoking this exemption. An employer that is legally required to undertake a criminal background check of an applicant may conduct the background check prior to a conditional offer, but must still conduct a Fair Chance Analysis of the applicant's criminal history and provide the applicant a copy of the inquiry and Fair Chance Notice and a reasonable period of at least five days to respond.88
Example: An employer is hiring for a home health aide position and is required under the Public Health Law to request that the New York Department of Health ("DOH") check prospective employees' criminal background.89 The employer is still prohibited by the NYCHRL from stating "background check required" in the job posting. After applicants apply for the job but, prior to a conditional offer, the employer requests that DOH check their criminal records. The employer advises all applicants that the job requires a criminal background check pursuant to Public Health Law § 2899-a. The following scenarios unfold.
Scenario 1: After completing its review, DOH notifies the employer that nothing in an applicant's criminal record requires the employer to reject the applicant and provides the employer a copy of the applicant's criminal record. Based on its own review of the applicant's criminal record, the employer still has reservations about hiring them for the job. Before rejecting the applicant, the employer is required to properly conduct a Fair Chance Analysis of the applicant's criminal history, provide the applicant a summary of the DOH criminal background check and the completed Fair Chance Notice, and allow the applicant at least five days to respond.
Scenario 2: After completing its review, DOH notifies the employer that they must reject the applicant for employment. The employer must provide the employee a copy of the DOH notice, but may reject the applicant without performing a Fair Chance Analysis or providing them a completed Fair Chance Notice.
Legally Mandated Exclusions from Employment Based on Certain Criminal Histories
If a federal, state or local law requires an employer to exclude a person from employment because they have been convicted of one or more specific offenses, an employer who is not exempt as described in Subparts C and D is still required to undertake all other actions required by the NYCHRL that are not in conflict with the requirements of the federal, state or local law.90 Unless the employer is explicitly required or permitted by another law to state in a job posting that applicants with certain criminal histories are legally disqualified (e.g. "no felonies"), the employer is prohibited by the NYCHRL from doing so in a job advertisement.91 The employer may, however, advise applicants once they apply about any criminal histories that are disqualifying for the position due to a legally mandated exclusion. The employer should advise the applicant of the legal citation for the mandatory exclusion when invoking this exemption. Prior to a conditional offer, the employer may ask the applicant whether they have been convicted of any of the specific offenses subject to the legally mandated exclusion for which they have not received an executive pardon removing the disability, a certificate of relief from disabilities, or a certificate of good conduct; however, the employer should not ask broadly whether an applicant has been convicted of any crime. An employer that is hiring for a position subject to a legally mandated exclusion may conduct a criminal background check prior to making a conditional offer of employment and may reject a candidate based on any conviction that is subject to the legally mandated exclusion without performing a Fair Chance Analysis or providing a copy of the Fair Chance Notice.92 It is a best practice for the employer to provide the job applicant with a copy of the information on which the employer relied in determining that a legally mandated exclusion bars the applicant's employment. Furthermore, because this exemption applies only to the extent that an applicant or employee is truly subject to a mandatory legal bar to employment, the employer must consider evidence demonstrating that the disqualifying conviction is an error and, if appropriate, reassess the person's corrected criminal record consistent with the NYCHRL. If the applicant has a criminal history about which the employer has concerns but that is not subject to the legally mandatory bar, the employer must conduct the Fair Chance Analysis and provide the applicant a copy of the inquiry and Fair Chance Notice and a reasonable period of at least five days to respond.93
Example: A licensed private investigator is looking to hire an administrative assistant and is prohibited by General Business Law § 81 from knowingly employing anyone who has been convicted of a felony or any of the offenses listed in General Business Law § 74(2)94 who has not received an executive pardon removing the disability, a certificate of relief from disabilities, or a certificate of good conduct.95 The employer makes no mention of background checks or disqualifying convictions in its job posting. On the job application form, the employer provides a list of the convictions that are disqualifying under General Business Law § 81 and permissibly asks applicants "Have you ever been convicted of a felony or one or more of these offenses, for which you have not received an executive pardon removing the disability or a certificate of relief from disabilities or a certificate of good conduct?" The employer also performs a criminal background check on all applicants without first making a conditional offer of employment. The following scenarios unfold.
Scenario 1: An applicant for the job has a felony conviction that is subject to the mandatory legal exclusion. The employer does not conduct a Fair Chance Analysis or provide the applicant with a Fair Chance Notice. The employer notifies the applicant that they will not be hired because, "based on your felony conviction for assault in the second degree you are subject to a mandatory legal bar from this position, under General Business Law § 74(2)." Though not required by law, the employer provides the applicant a copy of the criminal background check.
Scenario 2: An applicant has a criminal history that is neither a felony nor listed in General Business Law § 74(2), but which causes the employer to have some reservations about hiring the candidate. The employer is required to conduct a Fair Chance Analysis of the applicant's criminal history, provide the applicant a copy of the criminal background check and the completed Fair Chance Notice, allow the applicant at least five business days to respond, and communicate in writing if the employer ultimately declines to hire the applicant.
Scenario 3: When the employer runs a criminal background check for an applicant with a common name, it appears that the applicant has a felony conviction that is subject to the mandatory legal exclusion under General Business Law § 74(2). The employer does not conduct a Fair Chance Analysis or provide the applicant with a Fair Chance Notice, but notifies the applicant, "Based on your felony conviction for computer tampering in the first degree you are subject to a mandatory legal bar from this position, under General Business Law § 74(2)," and provides the applicant with a copy of the criminal background check. The applicant promptly notifies the employer that it has incorrectly relied on the criminal record of a different person with the same name. The employer conducts a new background check and learns that the applicant was convicted of a misdemeanor drug offense that is not subject to the legally mandatory bar, is unrelated to the job duties, and poses no risk to people or property. Because the applicant is qualified for the job, the employer extends them a job offer.
Employers Required by a Self-Regulatory Organization to Conduct a Criminal Background Check of Regulated Persons
Employers in the financial services industry are exempt from the Fair Chance Process to the extent that it conflicts with industry-specific rules and regulations promulgated by a self-regulatory organization ("SRO").96 This exemption only applies to those positions regulated by SROs. Employment decisions regarding other positions must still comply with the Fair Chance Process.
Police and Peace Officers and Law Enforcement Agencies
Police and peace officers are exempt from the NYCHRL's employment protections based on criminal history.97 Under the NYCHRL, police and peace officers refer to those positions as defined under the Criminal Procedure Law.98 Other positions at law enforcement agencies, including civilian positions, are protected from discrimination based on an ACD or a favorable outcome under Criminal Procedure Law § 160.50,99 but are not protected against inquiries or adverse actions based on a conviction, youthful offender adjudication, or pending case, and are not entitled to the Fair Chance Process before adverse action is taken based on such cases.100
Other Exempt City Government Positions
City agencies are not required to perform a Fair Chance Analysis under NYCHRL § 8-107(10) with respect to a pending case or conviction that occurred during a person's employment if the employee is otherwise entitled to procedural protections against arbitrary discipline or dismissal under Civil Service Law § 75 or through a disciplinary process that is required by law or pursuant to administrative rules adopted after public notice-and-comment.101
The NYCHRL also allows for exemptions from the Fair Chance Process under NYCHRL § 8-107(11-a) for City positions that are designated by the Commissioner of DCAS, based on a determination that they involve law enforcement; are susceptible to bribery or other corruption; or entail the provision of services to, or the safeguarding of, people vulnerable to abuse.102 Once DCAS exempts a position, applicants may be asked about their conviction history at any time during the hiring process. Under this exemption, however, applicants who are denied employment because of their conviction history must receive a written copy of the employer's Fair Chance Analysis.103
X Best Practices for Employers
Employers can help to advance racial equity in New York City and minimize the collateral consequences of the criminal legal system by opting not to conduct criminal background checks on job applicants and employees, unless required by law.
An employer claiming an exemption to the Fair Chance Process must be able to show that the position falls under one of the categories in Part IX of this Guidance. Employers availing themselves of exemptions should inform applicants and employees of the exemption they believe applies and the Commission recommends that employers keep a record of their use of such exemptions for a period of three (3) years from the date an exemption is used. Keeping an exemption log will help the employer respond to Commission requests for information in the event of an investigation and can serve as evidence of an employer's compliance with the NYCHRL.
The Commission recommends that an exemption log include the following:
The Commission recommends that the results of any inquiry into an applicant's or employee's criminal history be collected and maintained on separate forms and kept confidential. An applicant's or employee's criminal history should not be used, distributed, or disseminated to anyone other than those involved in making an employment decision about an applicant or employee.
The Commission vigorously enforces the provisions of the NYCHRL that protect against employment discrimination based on criminal history. The amount of a civil penalty will be guided by the following factors, among others:
These penalties are in addition to the other remedies available to people who successfully resolve or prevail on claims under the NYCHRL, including, but not limited to, back and front pay, along with emotional distress damages.
The Commission is dedicated to eradicating workplace discrimination against people with a history of criminal system involvement. If you believe you have been subjected to unlawful discrimination on the basis of your criminal history or another protected category, please contact the Commission at 311 or at 212-416-0197 to file a complaint of discrimination with the Commission's Law Enforcement Bureau.