Posted by Dave Nerz on Dec 09, 2020

As of October 27, 2015, the following acts are separate, chargeable violations of the NYCHRL:


Here is a new one to add to your training of recruiters and your memory banks for any job that is in NY City.  It is called the Fair Chance Act and it prohibits you from asking about criminal background or telling a candidate that there will be a criminal background check until after a conditional offer is made.  I know, does not seem that this law can possibly be in existence…well it is very real and will cost you money to settle, or worse money to defend, if you mess up. 

See the specifics in the attached documents or just note the shaded area below.  You cannot declare, print or circulate anything regarding a job that states a limitation due to criminal history even if no one is harmed by such action.  We try to watch Matchmaker, but this is something you need to know before anything get posted on Matchmaker.  Be aware, be careful!

III Per Se Violations of the FCA

  1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”9

  2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

  3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the NYCHRL:
    a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history
    b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;
    c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond.

  4. Taking an adverse employment action because of an applicant’s non-conviction.

The business of recruiting is difficult, this little additional make it dangerous and costly if you are unaware of local rules. Be safe and know your laws!

Fair Chance FAQ

FCA Interpretive Guide