|
Amended New York City Commission on Human Rights (“CCHR”) rules governing employers’ consideration of criminal history will take effect on October 30, 2026. The rules align the CCHR’s regulations with the 2021 amendments to the City’s Fair Chance Act, which generally prohibits employers from asking about an applicant’s criminal history before making a conditional offer of employment and limits when employers may take adverse action based on criminal history.
The amended rules clarify the process employers must follow before withdrawing a conditional offer or taking other adverse action based on an applicant’s or employee’s criminal history. Among other requirements, employers must:
- Conduct an individualized assessment
- Provide the individual with a written copy of the criminal history inquiry and the Fair Chance Notice
- Allow a reasonable time of at least five (5) business days to respond.
The rules also address criminal history inquiries involving current employees, including employees being considered for promotion or transfer.
The rules clarify that certain actions constitute per-se violations of the Fair Chance Act, including:
- Using job applications or other language that expresses limitations on applicants or employees with criminal histories
- Making unsolicited statements about criminal background checks or referencing that such checks will be conducted, except in response to an applicant’s question about criminal history checks
- Seeking information about an applicant’s criminal history before making a conditional offer, including by searching public records or the internet
- Failing to apply the relevant Fair Chance Act factors when evaluating an individual’s criminal history
Exceptions may apply in certain circumstances, including where another law requires a criminal background check.
After considering the relevant Fair Chance Act factors, an employer may decline to hire an applicant based on criminal history where:
- A direct relationship exists between the criminal conduct and the duties and responsibilities of the position
- The applicant’s criminal history creates an unreasonable risk to property or the safety or welfare of specific individuals or the public
The rules clarify that the existence or seriousness of a conviction or pending case alone is insufficient to establish an unreasonable risk. Employers must consider and apply the relevant Fair Chance factors before making that determination.
What This Means for Employers
New York City employers should review their job postings, applications, background check procedures, and Fair Chance Act notices to ensure they comply with the amended rules. Employers should also train personnel involved in hiring and employment decisions to avoid prohibited criminal history inquiries and to conduct the required individualized assessment before taking adverse action.
| 
