Here's the order NYC's Fair Chance Act requires: make the job offer first, run the background check second, and if the criminal history worries you, go through a specific review process before you touch that offer. Skip a step, or do them out of order, and you've got a compliance problem, not just a paperwork one.
That's the short version. Now let's walk through why the order matters and what actually happens at each stage.
The Fair Chance Act is part of the NYC Human Rights Law, and it exists because employers used to screen people out before ever meeting them. See a record on an application, toss it, never find out the conviction was ten years old for something unrelated to the job.
NYC's answer was to force employers to evaluate a candidate as a candidate first. You judge the resume, the interview, the skills. Only after you've decided "yes, I want this person" does criminal history enter the picture at all.
So to say that again a different way: the offer has to be real and it has to come first. Not a soft maybe. Not "you're a finalist." An actual conditional offer of employment.
Nothing about criminal history. Not on the application, not in the interview, not in a casual "so, any run-ins with the law?" aside at the end of a call. None of it.
Your job posting can't say things like "must have clean background" or list criminal history as a disqualifier either. That's an easy one for a lot of small employers to miss, since it feels like standard boilerplate job-ad language. In NYC, it isn't allowed.
You also can't run any kind of criminal background search, public records pull, or database check on your own before that offer goes out. The restriction covers the employer's own googling too, not just a formal report from a screening company.
That part's not optional, and I'd treat it as covering every hiring manager involved, not just HR. One manager freelancing a background search before the offer stage puts the whole process at risk.
Once you've made a real conditional offer, you can order the background check. This is where the criminal history piece of the report comes into play for the first time, legally speaking.
If the report comes back clean, or with nothing that concerns you, you're basically done. Confirm the offer and move on. Most checks end right here, with no extra process needed at all.
If something in the report gives you pause, that's when NYC's process kicks in, and this is the part employers get wrong most often.
You can't just pull the offer. NYC requires what's generally called an individualized assessment, similar in spirit to the Article 23-A factors under New York State law but with its own additional Fair Chance factors layered on top.
In plain terms: you have to actually look at the person, not just the record. How serious was the offense. How long ago did it happen. Does it genuinely relate to the job you're hiring for. NYC's version also asks you to weigh things like the candidate's age at the time and evidence of rehabilitation.
You write that assessment down. Not because it's a formality, but because it's the thing that proves you actually did the analysis instead of just deciding a record was disqualifying and moving on.
If, after that honest look, you still want to withdraw the offer, you owe the candidate a specific notice process before it's final. This is generally called the Fair Chance Notice.
From what I recall, it includes a copy of the background report, a copy of your written assessment, and a real chance for the candidate to respond before anything's final.
There's a waiting period built in here too, I believe a handful of business days. Check the current NYC Commission on Human Rights guidance for the exact number before you build a process around it. That detail moves, and I'm not going to hand you a figure I'm not sure is still accurate.
| Stage | Criminal history allowed? | What you're doing |
|---|---|---|
| Job posting | No | No disqualifying language, no "clean background required" |
| Application and interview | No | Evaluate skills, experience, fit only |
| Conditional offer made | No | Offer must be genuine, not a soft maybe |
| Background check ordered | Yes, report generated | Criminal history first becomes visible |
| Report shows a concern | Yes, under review | Individualized assessment, written down |
| Considering withdrawing the offer | Yes, formal process | Fair Chance Notice, waiting period, candidate response |
Mostly, yes. The NYC Human Rights Law generally applies to employers with four or more employees, which catches most small businesses in the five boroughs, not just large companies. There are narrow exceptions for certain jobs where a state or federal law requires a specific background check, law enforcement being the obvious one.
If you think your role might qualify for an exception, don't guess. Check with a lawyer. Assuming you're exempt and being wrong about it is a worse position than just asking up front.
A lot of states have some version of "wait to ask about criminal history." NYC's Fair Chance Act goes further than most. The written individualized assessment, the specific pre-adverse-action notice with a real response window, and the restrictions on job posting language are all more detailed than what you'll find in a typical state law.
If you're only used to running background checks in a state with a lighter-touch rule, don't assume NYC works the same way. It doesn't.
And this NYC process runs alongside the federal FCRA's own disclosure and adverse-action requirements, not instead of them. You still need FCRA's authorization form and pre-adverse-action notice too. NYC adds requirements on top. It doesn't replace any of the federal ones.
Get the order right, document the assessment, and give the candidate the notice and response window the law requires. That's the whole process. It's more paperwork than a lot of employers expect, but none of it is optional.