United States: The Commission Speaks: Guidance For Employers Regarding The New York City Fair Chance Act

On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the "Act"), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process.  You can read more about the Act here.  The New York City Commission on Human Rights (the "Commission"), the agency charged with enforcement of the Act, recently issued "Legal Enforcement Guidance" (the "Guidance") regarding the Act.  As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.


The Act makes it an unlawful discriminatory practice to "[m]ake any inquiry or statement related to the pending arrest or criminal conviction record of any person who is in the process of applying for employment with such employer or agent thereof until after such employer or agent thereof has extended a conditional offer of employment to the applicant."  The Guidance defines several terms in this key component of the Act, including the terms "inquiry", "statement" and "conditional offer of employment", providing further guidance regarding the prohibition.

The Guidance defines "inquiry" as "[a]ny question, whether made in writing or orally, asked for the purpose of obtaining an applicant's criminal history, including, without limitation, questions in a job interview about an applicant's criminal history; and any search for an applicant's criminal history, including through the services of a third party, such as a consumer reporting agency."  The Guidance defines the term "statement" as "[a]ny words, whether made in writing or orally, for the purpose of obtaining an applicant's criminal history, including, without limitation, stating that a background check is required for a position."  These definitions make clear that the Commission views the Act's prohibitions on soliciting an applicant's criminal history very broadly and that, unless an exemption applies, employers may not seek to obtain an applicant's criminal history via any method prior to a conditional offer of employment.   In fact, later in the Guidance, the Commission demonstrates how expansive it believes this prohibition is, stating that employers are prohibited from even using search tools such as Google to search for terms such as, "arrest," "mugshot," "warrant," "criminal," "conviction," "jail," or "prison" with respect to an applicant.

The Guidance also defines the term "conditional offer of employment" as "[a]n offer of employment that can only be revoked based on: (1) "[t]he results of a criminal background check";  (2) "[t]he results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act"; or (3) "[o]ther information the employer could not have reasonably known before the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material to job performance."  In accord with this definition, in the "Enforcement" section of the Guidance, the Commission states that it will presume, unless rebutted, that an employer was motivated by an applicant's criminal record if it revokes a conditional offer of employment and that it will also presume that any reason known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer.

Per Se Violations of the Act

The Guidance details what it refers to as per se violations of the Act.  The Guidance states that making any inquiry or statement related to criminal history of an applicant is a per se violation.  It is also a per se violation to declare, print or circulate any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history.  For example, an advertisement or an employment application that stated "no felonies," "background check required," or "must have clean record" would be a violation of the Act.  The Guidance concerning per se violations also makes clear that such violations are not contingent upon a showing that an adverse action was taken against the applicant.  The employer is liable for such offenses even if the applicant is ultimately hired.

Under the Act, after a conditional offer of employment has been made, an employer may seek to obtain the criminal history of an applicant and may take adverse action based on that information, provided that the employer follows the various steps proscribed by the Act, including completing the multi-factor analysis under Article 23-A of the New York State Corrections Law ("Article 23-A").  The Guidance makes clear that an employer's failure to properly complete any of the steps required by the Act, constitutes a per se violation of the Act.

In addition, the Guidance provides that taking an adverse employment action because of an applicant's "non-conviction" constitutes a per se violation of the Act.  The Guidance defines "non-conviction" as (1) a termination of a criminal action in favor of the employee; (2) a juvenile conviction; or (3) a conviction under seal.  To guard against soliciting or considering non-conviction information, the Guidance provides the following sample language, which may be used after a conditional offer is made:

Have you ever been convicted of a misdemeanor or felony? Answer "NO" 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.

Article 23-A and The "Fair Chance Process"

If, after obtaining an applicant's criminal history, an employer wants to withdraw its conditional offer of employment, to comply with the Act, the employer must consider the Article 23-A factors and then follow several steps, which the Guidance refers to as the "Fair Chance Process."  These steps as detailed in the Act and in the Guidance are as follows:

  1. Disclose to the applicant a written copy of any inquiry it conducted into the applicant's criminal history;
  2. Share with the applicant a written copy of its Article 23-A analysis; and
  3. Allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer's concerns.

The Act directs the Commission to determine the manner in which employers inform applicants under Article 23-A and provide a written copy of that analysis to applicants.  In accord with this, the Commission has published a model Fair Chance Act Notice for employers to use.  It is available here.  The notice may be adapted to an employer's preferred format as long as the material substance of the model form does not change.

Although not addressed in the Guidance, to the extent employers utilize a third party to conduct the criminal background check, employers are reminded that they still need to comply with the notice and consent requirements of the federal and New York State Fair Credit Reporting Acts.

Misrepresentations by the Employee Regarding Criminal History

The Guidance states that, if an applicant misrepresents his or her criminal history, and if the applicant cannot or does not demonstrate that any discrepancy between the information he or she disclosed and the employer's background report is due to an error, an employer may disqualify the applicant and choose not to hire him or her, and is not required to perform an Article 23-A analysis before making such a decision.

Positions Exempt from the Act

The Guidance states that all exemptions to the Act are to be construed narrowly.  With respect to the exception for employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions, the Guidance makes clear that the exception does not apply where the federal, state or local law is discretionary rather than mandatory in nature.  The Guidance also provides that an employer is only exempt from the Act when hiring for positions where a criminal history check is required by law.  For positions that do not require a criminal history check, employers have to follow the Act.

The Guidance further provides that employers required by a self-regulatory organization ("SRO") to conduct a criminal background check are only exempt with respect to those positions regulated by SROs; employment decisions regarding other unregulated positions must still comply with the Act.

Best Practices

The Guidance sets forth a list of best practices for employers.  To the extent an employer seeks to claim an exemption, the Commission recommends that the employer keep an exception log, which should be retained for five (5) years, and include the following:

  • Which exemption(s) is claimed;
  • How the position fits into the exemption and, if applicable, the federal, state, or local law or rule allowing the exemption;
  • A copy of any criminal history inquiry, along with the name of the employee who made it;
  • A copy of the employer's Article 23-A analysis and the name of any employees who participated in it; and
  • The final employment action that was taken based on the applicant's criminal history.

The Guidance also recommends that the results of any criminal history inquiry be maintained separately from other information and kept confidential and should not be used, distributed, or disseminated to any persons other than those involved in making an employment decision about an applicant.

Pending Criminal Charges

The Guidance makes clear that the prohibition on criminal history inquiries prior to the conditional offer of employment not only includes criminal convictions, but also includes pending criminal charges.  However, the Guidance also states that neither the New York City nor New York State Human Rights Law prohibits basing an employment decision on a pending criminal proceeding.  Thus, it appears that employers may continue to reject an applicant based on pending criminal charges, provided that no inquiry or decision is made based on such charges prior to the conditional offer of employment.


The Guidance provides that any notices and disclosures required by the Act and the Guidance may be communicated by email, if such a method of communication is mutually agreed on in advance by the employer and the applicant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
18 Sep 2018, Speaking Engagement, London, UK

Partner Christoph Brenner will attend as a panelist at the Annual Private Equity Europe Forum on the panel "Middle Market & Growth Investing" on Tuesday, September 18 at 3:45 p.m.

18 Sep 2018, Business Breakfast, London, UK

We are pleased to invite you to a breakfast briefing on the ground-breaking reforms of France’s bank monopoly laws.

20 Sep 2018, Seminar, Tokyo, Japan

Orrick's Total Access Japan Event Series provides entrepreneurs business, tactical, and legal education through complimentary panels and seminars and networking events. The next event will take place on Thursday, September 20 from 6:00 pm to 7:30 pm.

Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions