As a reminder, the FCA is NYC’s “ban-the-box” law, which restricts the types of inquiries employers can make regarding criminal history during the hiring process, as well as the timing of such inquiries.
It also requires employers to engage in a “fair chance” process (which includes providing a notice, giving the applicant or worker an opportunity to respond, and performing an analysis of certain factors) before taking adverse action against an applicant or worker on the basis of criminal history.
The amended law took effect on October 30, 2026.
Amendments to the FCA include:
Conduct that Constitutes an FCA Violation
The guidance clarifies Clarification what constitutes a per se violation of the FCA, meaning an action that, standing alone, violates the FCA regardless of whether any adverse employment action was taken or actual injury occurred. These violations now include:
- Referencing that background checks will be conducted before making a conditional offer of employment to an applicant;
- Disqualifying an applicant for refusing to respond to a prohibited inquiry or statement about criminal history; and
- Failing to analyze certain factors required under the FCA before taking an adverse action against an applicant or worker who has identified an error in their criminal history that is material to the analysis.
“Direct Relationship” Exception
The guidance clarifies what constitutes a “direct relationship” between an applicant or worker’s criminal history and the prospective or current job, such that an employer may take adverse action based on that criminal history. To claim the “direct relationship” exception, the employer must show a direct connection between the conduct underlying the criminal offense and the specific duties of the job, while also considering any mitigating factors.
Leave During the Fair Chance Process
The guidance explains that, while conducting the “fair chance” process with respect to an employee who has a pending criminal case or a conviction that occurs during employment, the employer may place the employee on paid or unpaid leave for a “reasonable time,” defined as no more than 5 business days.
Elimination of the Early Resolution Process
Elimination of an early resolution process for FCA claims initiated by the New York City Commission on Human Rights that was formerly available to employers with 50 or fewer employees. This process previously provided employers with an option to expedite resolution of such claims by admitting liability and paying a penalty.
Job Postings and Applicant Questions
Clarification that employers are permitted to include affirmative statements in job postings encouraging individuals with criminal records to apply and to respond to applicants’ questions about whether a criminal background check will be conducted.
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